General terms and conditions
Top-Fotografie GmbH, Kurze Straße 16, 09577 Niederwiesa - Stand 02/2019
I. General Information, Terminology
1. The following General Terms and Conditions apply to all orders placed with the photography company.
2. They shall be deemed accepted with the acceptance of the offer issued by the photography company or acceptance of the delivery or service.
3. For the purpose of these terms and conditions, a “photograph” refers to any product produced by the photography company, irrespective of the technical format or medium (negative, diapositive, paper prints, still videos, electronic still images in digital format, videos etc.).
4. For the purpose of these terms and conditions, “goods” are both non-fungible, as they are made individual through the application of an image, as well as fungible, moveable items.
5. For the purpose of these terms and conditions, the “Client” and, therefore, the contracting party is
a) usually the legal guardian when selecting and keeping photographs
b) the legal guardian for any subsequent orders
c) the individual specified in the order for any orders made on the online shop
d) the individual specified as part of the job or contract for anything else.
II. Offering and Contract Conclusion, Cash on Delivery
1. DFor initial orders, the photography company shall make an offering by sending or handing over the finished photographs to the Client. A contract is then concluded when the Client chooses to select and keep all or some of the photographs.
2. If the photography company provides the Client with multiple photographs to choose from, the Client must return any photographs they do not wish to keep within one week from receipt thereof at their own risk and expense, or if the photographs have been handed over by a third party, then they should be returned to said party. The photography company can demand payment for any photographs which are not returned, provided that the company itself is not responsible for the loss.
3. The photography company shall accept any requests made by the Client for any subsequent orders involving photographs and other goods and services by way of email confirmation or by delivering the photographs, goods or services ordered.
4. For orders made on the online shop, the Client, provided that they are a consumer within the sense of section 13 of the BGB (Bürgerliches Gesetzbuch [German Civil Code]), shall have the right to cancel or return an order when provided for by law. Instructions can be found on the photography company’s website.
III. Copyright and Use of the Photographs
1. The photography company shall own the copyright to the photographs in accordance with the German Law on Copyright.
2. Where the photography company assigns rights of use and enjoyment to their work, these rights shall be non-exclusive only, unless expressly agreed otherwise. A specific agreement is required for rights of use and enjoyment to be transferred.
3. As a basic principle, the photographs produced by the photography company are only intended for the Client’s personal use. In particular, the Client is not permitted to forward any photographs produced by the photography company to newspapers, magazines and the like.
4. Rights of use and enjoyment shall only be assigned to the Client after the fee has been paid to the photography company in full.
5. The Client of a photograph, within the sense of section 60 of the UrhG (Urhebergesetz [German Law on Copyright]), is not permitted to copy or disseminate photographs if they have not been assigned the corresponding rights of use and enjoyment. Section 60 of the UrhG is hereby expressly waived.
6. Digitising and/or reproducing the photographs on any kind of data storage device and publishing the photographs on the Internet is not permitted if the corresponding rights of use and enjoyment have not been assigned. Rights to the private use of the photographs shall be assigned to the Client with the purchase of data storage devices and files which contain the photographs.
7. Changes may only be made to the photographs produced by the photography company using electronic means, or through composition or montage, after the photography company has assigned the corresponding rights of use and enjoyment to the Client. Rights to the private use of the photographs shall be transferred with the purchase of data storage devices and files which contain the photographs.
8. Unless otherwise agreed, the photography company may ask to be named as the owner of the copyright to the photographs in the event that they are used as permitted by the above provisions. If this request is not met, the photography company shall be entitled to receive compensation.
9. The photography company shall keep the negatives. The negatives shall only be given out to the Client by special arrangement.
10. “Private” use involves using the photographs and image files for purposes which are exclusively non-commercial, on forums, blogs and personal, non-commercial webpages etc.
IV. Delivery, Shipment, Transfer of Risk
1. Time frames and deadlines for services are only legally binding if it has been expressly agreed that they are binding. Otherwise, the photography company shall render their services as quickly as it is possible to duly and properly do so. If no specific deadline has been set, performance shall be deemed delayed only after receipt of a reminder or warning. The Client shall remain obligated to purchase even after the deadline has passed, unless the photography company receives their letter of cancellation before sending the goods or delivering the services or the Client can demonstrate that they no longer have any interest in the goods or services.
2. If the photography company, their legal representative or agent is responsible for a delay in service provision due to intent or gross negligence or if they arranged a fixed deadline which was not met, or if the Client can demonstrate that they no longer have any interest in the services as a result of a delay, the photography company shall assume liability in accordance with legal provisions. If the delay in delivery arises from a fundamental contractual obligation having been intentionally violated, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, liability shall be limited to the foreseeable damage which might typically occur. Acceptance of liability shall be excluded for matters aside from those indicated above.
3. If production or delivery is prevented or delayed due to reasons for which the photography company is not to blame, the time for delivery shall be postponed by the time the impediment is proven to last. The Client may not make any claims for damages during this period.
4. The Client shall assume the risk for the shipment of any subsequent orders, goods or deliverables. Risk is transferred to the Client when any photographs part of a subsequent order, goods or deliverables are handed over to the shipping company. Unless otherwise instructed by the Client, shipments are made using DPD, uninsured and at the expense of the Client.
5. Shipping is charged at a flat rate of €3.95. If the Client so requests, cash on delivery can be arranged for an extra €2.50.
V. Payment, Reservation of Ownership
1. The agreed fee shall apply. For any subsequent orders or goods or services ordered on the online shop, the prices specified there shall apply.
2. For initial orders, the Client usually pays the amount indicated in the invoice to a third party, primarily the school or nursery, who then passes the amount on to the photography company. This third party shall be entitled to collect the contractor’s receivables. For any subsequent orders or orders placed on the online shop, the Client shall pay using an offered payment method of their choice.
3. If the photography company issues an invoice which does not specify any payment terms, the amount on the invoice is due immediately and should be paid within 7 days after the invoice was received.
4. If the invoice is to be paid by direct debit, the Client must bear any costs which may arise if the amount cannot be collected due to insufficient funds in the account or incorrect account details.
Direct debit authorisation: the amount due for any subsequent orders is collected within 2 days and the goods are delivered thereafter.
5. If the Client defaults on their payment, interest should be applied on the amount due to the photography company in the amount of 8.0% (5% provided that the Client is a consumer within the sense of section 13 of the BGB) above the applicable basic rate of interest, with the minimum interest applied being 12%. Proof may be submitted in support of damages being higher or lower due to delay.
6. If the Client’s financial circumstances significantly worsen or if the photography company becomes aware that their right to payment was already in jeopardy upon conclusion of the contract, the photography company shall reserve the right to only take orders against payment in advance.
7. The Client shall only be entitled to offset their claims against any claims on the part of the photography company where these counter-claims have been deemed undisputed or legally valid, or expressly acknowledged in writing by the photography company. The same shall apply if the Client were to exercise their withholding right.
8. The supplied photographs, goods or deliverables shall continue to be property of the photography company until the purchase price has been paid in full, even if parts of the total price have already been paid.
VI. Ancillary Obligations
The Client shall ensure that they possess the right to copy and disseminate any material they pass on to the photography company, as well as the consent of the person depicted in any images of people to disclose, copy and disseminate the image concerned. The Client shall be responsible for resolving any claims for compensation from third parties as a result of this obligation being violated.
VII. Warranty
1. A photograph, good or service shall only be considered defective if it is not in line with the latest technical standards, with particular regard to current developing and processing methods. Where the Client has not provided the photography company with any express instruction with regard to photograph composition, any complaints regarding imagery or technical or artistic composition are excluded.
2. In the event of legitimate cause for complaint, the photography company can choose to rectify the problem or provide a replacement. The photography company, when providing a replacement, shall be permitted an appropriate amount of time to do so, especially that required in order to produce a replacement good or deliverable. The Client shall only be entitled to make further claims if the photography company does not resolve any major defects within an appropriate amount of time or if they make two failed attempts at rectification.
VIII. Liability
1. Mandatory provisions governing product liability shall remain unaffected.
2. On the basis of legal provisions, the photography company shall assume liability in the event of breaches of warranty and personal injury as well as if they, their legal representatives or agents are guilty of gross negligence or intent.
3. If the photography company violates a fundamental contractual obligation as a result of negligence, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, their obligation to provide compensation for material damage shall be limited to compensation for the foreseeable damage which might typically occur. The photography company shall only assume liability for damage to subjects of the photograph, material, negatives or image files in the event of gross negligence or intent - unless otherwise agreed.
4. The photography company shall keep the negatives safe. They shall be entitled, but not obliged, to dispose of the negatives they have kept stored three years after the end of the contract without having to inform the Client that they are doing so. For individual images, the Client can ask the photography company to dispose of the negatives or image files at any time.
5. The photography company shall assume liability for ensuring that the photographs last and do not fade for a period of 5 years, yet only if the Client uses the photographs properly and appropriately. If the photographs are kept properly stored, they will retain their colour and quality for significantly longer. If the quality of a photograph is decreasing, it is recommended that the Client have a photograph produced of the photograph concerned, whereby it is more or less possible to achieve the quality of the original.
6. All further claims shall be excluded.
7. Insofar as the photography company’s liability is excluded or limited, this shall also apply to the personal liability of their employees, workers, representatives and agents.
IX. Data Protection
Any personal data required from the Client to do business shall be stored by the photography company. The photography company shall undertake to treat any information that comes to their attention as part of the job confidentially.
X. Final Provisions
1. If any individual provisions in these agreements prove to be ineffective, or if the act of implementing the contract reveals any gaps in need of filling, this shall not affect the validity of the remaining contractual provisions, nor shall it affect the validity of this contract as a whole.
2. The law of the Federal Republic of Germany shall apply, under exclusion of the UN Convention on Contracts for the International Sale of Goods.
3. If the Client is a trader as per the German Commercial Code, or if they are a legal entity under public law, it is hereby agreed that the photography company’s registered principal place of business shall be the exclusive place of performance and jurisdiction for any disputes arising as a result of this contractual relationship.
Michelbach, February 2019
General terms and conditions
Top-Fotografie Handelsgesellschaft Rau mbH, Schenkenstr. 8, 74544 Michelbach/Bilz - Stand 02/2019
I. General Information, Terminology
1. The following General Terms and Conditions apply to all orders placed with the photography company.
2. They shall be deemed accepted with the acceptance of the offer issued by the photography company or acceptance of the delivery or service.
3. For the purpose of these terms and conditions, a “photograph” refers to any product produced by the photography company, irrespective of the technical format or medium (negative, diapositive, paper prints, still videos, electronic still images in digital format, videos etc.).
4. For the purpose of these terms and conditions, “goods” are both non-fungible, as they are made individual through the application of an image, as well as fungible, moveable items.
5. For the purpose of these terms and conditions, the “Client” and, therefore, the contracting party is
a) usually the legal guardian when selecting and keeping photographs
b) the legal guardian for any subsequent orders
c) the individual specified in the order for any orders made on the online shop
d) the individual specified as part of the job or contract for anything else.
II. Offering and Contract Conclusion, Cash on Delivery
1. DFor initial orders, the photography company shall make an offering by sending or handing over the finished photographs to the Client. A contract is then concluded when the Client chooses to select and keep all or some of the photographs.
2. If the photography company provides the Client with multiple photographs to choose from, the Client must return any photographs they do not wish to keep within one week from receipt thereof at their own risk and expense, or if the photographs have been handed over by a third party, then they should be returned to said party. The photography company can demand payment for any photographs which are not returned, provided that the company itself is not responsible for the loss.
3. The photography company shall accept any requests made by the Client for any subsequent orders involving photographs and other goods and services by way of email confirmation or by delivering the photographs, goods or services ordered.
4. For orders made on the online shop, the Client, provided that they are a consumer within the sense of section 13 of the BGB (Bürgerliches Gesetzbuch [German Civil Code]), shall have the right to cancel or return an order when provided for by law. Instructions can be found on the photography company’s website.
III. Copyright and Use of the Photographs
1. The photography company shall own the copyright to the photographs in accordance with the German Law on Copyright.
2. Where the photography company assigns rights of use and enjoyment to their work, these rights shall be non-exclusive only, unless expressly agreed otherwise. A specific agreement is required for rights of use and enjoyment to be transferred.
3. As a basic principle, the photographs produced by the photography company are only intended for the Client’s personal use. In particular, the Client is not permitted to forward any photographs produced by the photography company to newspapers, magazines and the like.
4. Rights of use and enjoyment shall only be assigned to the Client after the fee has been paid to the photography company in full.
5. The Client of a photograph, within the sense of section 60 of the UrhG (Urhebergesetz [German Law on Copyright]), is not permitted to copy or disseminate photographs if they have not been assigned the corresponding rights of use and enjoyment. Section 60 of the UrhG is hereby expressly waived.
6. Digitising and/or reproducing the photographs on any kind of data storage device and publishing the photographs on the Internet is not permitted if the corresponding rights of use and enjoyment have not been assigned. Rights to the private use of the photographs shall be assigned to the Client with the purchase of data storage devices and files which contain the photographs.
7. Changes may only be made to the photographs produced by the photography company using electronic means, or through composition or montage, after the photography company has assigned the corresponding rights of use and enjoyment to the Client. Rights to the private use of the photographs shall be transferred with the purchase of data storage devices and files which contain the photographs.
8. Unless otherwise agreed, the photography company may ask to be named as the owner of the copyright to the photographs in the event that they are used as permitted by the above provisions. If this request is not met, the photography company shall be entitled to receive compensation.
9. The photography company shall keep the negatives. The negatives shall only be given out to the Client by special arrangement.
10. “Private” use involves using the photographs and image files for purposes which are exclusively non-commercial, on forums, blogs and personal, non-commercial webpages etc.
IV. Delivery, Shipment, Transfer of Risk
1. Time frames and deadlines for services are only legally binding if it has been expressly agreed that they are binding. Otherwise, the photography company shall render their services as quickly as it is possible to duly and properly do so. If no specific deadline has been set, performance shall be deemed delayed only after receipt of a reminder or warning. The Client shall remain obligated to purchase even after the deadline has passed, unless the photography company receives their letter of cancellation before sending the goods or delivering the services or the Client can demonstrate that they no longer have any interest in the goods or services.
2. If the photography company, their legal representative or agent is responsible for a delay in service provision due to intent or gross negligence or if they arranged a fixed deadline which was not met, or if the Client can demonstrate that they no longer have any interest in the services as a result of a delay, the photography company shall assume liability in accordance with legal provisions. If the delay in delivery arises from a fundamental contractual obligation having been intentionally violated, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, liability shall be limited to the foreseeable damage which might typically occur. Acceptance of liability shall be excluded for matters aside from those indicated above.
3. If production or delivery is prevented or delayed due to reasons for which the photography company is not to blame, the time for delivery shall be postponed by the time the impediment is proven to last. The Client may not make any claims for damages during this period.
4. The Client shall assume the risk for the shipment of any subsequent orders, goods or deliverables. Risk is transferred to the Client when any photographs part of a subsequent order, goods or deliverables are handed over to the shipping company. Unless otherwise instructed by the Client, shipments are made using DPD, uninsured and at the expense of the Client.
5. Shipping is charged at a flat rate of €3.95. If the Client so requests, cash on delivery can be arranged for an extra €2.50.
V. Payment, Reservation of Ownership
1. The agreed fee shall apply. For any subsequent orders or goods or services ordered on the online shop, the prices specified there shall apply.
2. For initial orders, the Client usually pays the amount indicated in the invoice to a third party, primarily the school or nursery, who then passes the amount on to the photography company. This third party shall be entitled to collect the contractor’s receivables. For any subsequent orders or orders placed on the online shop, the Client shall pay using an offered payment method of their choice.
3. If the photography company issues an invoice which does not specify any payment terms, the amount on the invoice is due immediately and should be paid within 7 days after the invoice was received.
4. If the invoice is to be paid by direct debit, the Client must bear any costs which may arise if the amount cannot be collected due to insufficient funds in the account or incorrect account details.
Direct debit authorisation: the amount due for any subsequent orders is collected within 2 days and the goods are delivered thereafter.
5. If the Client defaults on their payment, interest should be applied on the amount due to the photography company in the amount of 8.0% (5% provided that the Client is a consumer within the sense of section 13 of the BGB) above the applicable basic rate of interest, with the minimum interest applied being 12%. Proof may be submitted in support of damages being higher or lower due to delay.
6. If the Client’s financial circumstances significantly worsen or if the photography company becomes aware that their right to payment was already in jeopardy upon conclusion of the contract, the photography company shall reserve the right to only take orders against payment in advance.
7. The Client shall only be entitled to offset their claims against any claims on the part of the photography company where these counter-claims have been deemed undisputed or legally valid, or expressly acknowledged in writing by the photography company. The same shall apply if the Client were to exercise their withholding right.
8. The supplied photographs, goods or deliverables shall continue to be property of the photography company until the purchase price has been paid in full, even if parts of the total price have already been paid.
VI. Ancillary Obligations
The Client shall ensure that they possess the right to copy and disseminate any material they pass on to the photography company, as well as the consent of the person depicted in any images of people to disclose, copy and disseminate the image concerned. The Client shall be responsible for resolving any claims for compensation from third parties as a result of this obligation being violated.
VII. Warranty
1. A photograph, good or service shall only be considered defective if it is not in line with the latest technical standards, with particular regard to current developing and processing methods. Where the Client has not provided the photography company with any express instruction with regard to photograph composition, any complaints regarding imagery or technical or artistic composition are excluded.
2. In the event of legitimate cause for complaint, the photography company can choose to rectify the problem or provide a replacement. The photography company, when providing a replacement, shall be permitted an appropriate amount of time to do so, especially that required in order to produce a replacement good or deliverable. The Client shall only be entitled to make further claims if the photography company does not resolve any major defects within an appropriate amount of time or if they make two failed attempts at rectification.
VIII. Liability
1. Mandatory provisions governing product liability shall remain unaffected.
2. On the basis of legal provisions, the photography company shall assume liability in the event of breaches of warranty and personal injury as well as if they, their legal representatives or agents are guilty of gross negligence or intent.
3. If the photography company violates a fundamental contractual obligation as a result of negligence, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, their obligation to provide compensation for material damage shall be limited to compensation for the foreseeable damage which might typically occur. The photography company shall only assume liability for damage to subjects of the photograph, material, negatives or image files in the event of gross negligence or intent - unless otherwise agreed.
4. The photography company shall keep the negatives safe. They shall be entitled, but not obliged, to dispose of the negatives they have kept stored three years after the end of the contract without having to inform the Client that they are doing so. For individual images, the Client can ask the photography company to dispose of the negatives or image files at any time.
5. The photography company shall assume liability for ensuring that the photographs last and do not fade for a period of 5 years, yet only if the Client uses the photographs properly and appropriately. If the photographs are kept properly stored, they will retain their colour and quality for significantly longer. If the quality of a photograph is decreasing, it is recommended that the Client have a photograph produced of the photograph concerned, whereby it is more or less possible to achieve the quality of the original.
6. All further claims shall be excluded.
7. Insofar as the photography company’s liability is excluded or limited, this shall also apply to the personal liability of their employees, workers, representatives and agents.
IX. Data Protection
Any personal data required from the Client to do business shall be stored by the photography company. The photography company shall undertake to treat any information that comes to their attention as part of the job confidentially.
X. Final Provisions
1. If any individual provisions in these agreements prove to be ineffective, or if the act of implementing the contract reveals any gaps in need of filling, this shall not affect the validity of the remaining contractual provisions, nor shall it affect the validity of this contract as a whole.
2. The law of the Federal Republic of Germany shall apply, under exclusion of the UN Convention on Contracts for the International Sale of Goods.
3. If the Client is a trader as per the German Commercial Code, or if they are a legal entity under public law, it is hereby agreed that the photography company’s registered principal place of business shall be the exclusive place of performance and jurisdiction for any disputes arising as a result of this contractual relationship.
Michelbach, February 2019
General terms and conditions
Young People Portraitphoto Zweigniederlassung der Top-Fotografie GmbH, Schenkenstr. 8, 74544 Michelbach/Bilz - Stand 02/2019
I. General Information, Terminology
1. The following General Terms and Conditions apply to all orders placed with the photography company.
2. They shall be deemed accepted with the acceptance of the offer issued by the photography company or acceptance of the delivery or service.
3. For the purpose of these terms and conditions, a “photograph” refers to any product produced by the photography company, irrespective of the technical format or medium (negative, diapositive, paper prints, still videos, electronic still images in digital format, videos etc.).
4. For the purpose of these terms and conditions, “goods” are both non-fungible, as they are made individual through the application of an image, as well as fungible, moveable items.
5. For the purpose of these terms and conditions, the “Client” and, therefore, the contracting party is
a) usually the legal guardian when selecting and keeping photographs
b) the legal guardian for any subsequent orders
c) the individual specified in the order for any orders made on the online shop
d) the individual specified as part of the job or contract for anything else.
II. Offering and Contract Conclusion, Cash on Delivery
1. DFor initial orders, the photography company shall make an offering by sending or handing over the finished photographs to the Client. A contract is then concluded when the Client chooses to select and keep all or some of the photographs.
2. If the photography company provides the Client with multiple photographs to choose from, the Client must return any photographs they do not wish to keep within one week from receipt thereof at their own risk and expense, or if the photographs have been handed over by a third party, then they should be returned to said party. The photography company can demand payment for any photographs which are not returned, provided that the company itself is not responsible for the loss.
3. The photography company shall accept any requests made by the Client for any subsequent orders involving photographs and other goods and services by way of email confirmation or by delivering the photographs, goods or services ordered.
4. For orders made on the online shop, the Client, provided that they are a consumer within the sense of section 13 of the BGB (Bürgerliches Gesetzbuch [German Civil Code]), shall have the right to cancel or return an order when provided for by law. Instructions can be found on the photography company’s website.
III. Copyright and Use of the Photographs
1. The photography company shall own the copyright to the photographs in accordance with the German Law on Copyright.
2. Where the photography company assigns rights of use and enjoyment to their work, these rights shall be non-exclusive only, unless expressly agreed otherwise. A specific agreement is required for rights of use and enjoyment to be transferred.
3. As a basic principle, the photographs produced by the photography company are only intended for the Client’s personal use. In particular, the Client is not permitted to forward any photographs produced by the photography company to newspapers, magazines and the like.
4. Rights of use and enjoyment shall only be assigned to the Client after the fee has been paid to the photography company in full.
5. The Client of a photograph, within the sense of section 60 of the UrhG (Urhebergesetz [German Law on Copyright]), is not permitted to copy or disseminate photographs if they have not been assigned the corresponding rights of use and enjoyment. Section 60 of the UrhG is hereby expressly waived.
6. Digitising and/or reproducing the photographs on any kind of data storage device and publishing the photographs on the Internet is not permitted if the corresponding rights of use and enjoyment have not been assigned. Rights to the private use of the photographs shall be assigned to the Client with the purchase of data storage devices and files which contain the photographs.
7. Changes may only be made to the photographs produced by the photography company using electronic means, or through composition or montage, after the photography company has assigned the corresponding rights of use and enjoyment to the Client. Rights to the private use of the photographs shall be transferred with the purchase of data storage devices and files which contain the photographs.
8. Unless otherwise agreed, the photography company may ask to be named as the owner of the copyright to the photographs in the event that they are used as permitted by the above provisions. If this request is not met, the photography company shall be entitled to receive compensation.
9. The photography company shall keep the negatives. The negatives shall only be given out to the Client by special arrangement.
10. “Private” use involves using the photographs and image files for purposes which are exclusively non-commercial, on forums, blogs and personal, non-commercial webpages etc.
IV. Delivery, Shipment, Transfer of Risk
1. Time frames and deadlines for services are only legally binding if it has been expressly agreed that they are binding. Otherwise, the photography company shall render their services as quickly as it is possible to duly and properly do so. If no specific deadline has been set, performance shall be deemed delayed only after receipt of a reminder or warning. The Client shall remain obligated to purchase even after the deadline has passed, unless the photography company receives their letter of cancellation before sending the goods or delivering the services or the Client can demonstrate that they no longer have any interest in the goods or services.
2. If the photography company, their legal representative or agent is responsible for a delay in service provision due to intent or gross negligence or if they arranged a fixed deadline which was not met, or if the Client can demonstrate that they no longer have any interest in the services as a result of a delay, the photography company shall assume liability in accordance with legal provisions. If the delay in delivery arises from a fundamental contractual obligation having been intentionally violated, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, liability shall be limited to the foreseeable damage which might typically occur. Acceptance of liability shall be excluded for matters aside from those indicated above.
3. If production or delivery is prevented or delayed due to reasons for which the photography company is not to blame, the time for delivery shall be postponed by the time the impediment is proven to last. The Client may not make any claims for damages during this period.
4. The Client shall assume the risk for the shipment of any subsequent orders, goods or deliverables. Risk is transferred to the Client when any photographs part of a subsequent order, goods or deliverables are handed over to the shipping company. Unless otherwise instructed by the Client, shipments are made using DPD, uninsured and at the expense of the Client.
5. Shipping is charged at a flat rate of €3.95. If the Client so requests, cash on delivery can be arranged for an extra €2.50.
V. Payment, Reservation of Ownership
1. The agreed fee shall apply. For any subsequent orders or goods or services ordered on the online shop, the prices specified there shall apply.
2. For initial orders, the Client usually pays the amount indicated in the invoice to a third party, primarily the school or nursery, who then passes the amount on to the photography company. This third party shall be entitled to collect the contractor’s receivables. For any subsequent orders or orders placed on the online shop, the Client shall pay using an offered payment method of their choice.
3. If the photography company issues an invoice which does not specify any payment terms, the amount on the invoice is due immediately and should be paid within 7 days after the invoice was received.
4. If the invoice is to be paid by direct debit, the Client must bear any costs which may arise if the amount cannot be collected due to insufficient funds in the account or incorrect account details.
Direct debit authorisation: the amount due for any subsequent orders is collected within 2 days and the goods are delivered thereafter.
5. If the Client defaults on their payment, interest should be applied on the amount due to the photography company in the amount of 8.0% (5% provided that the Client is a consumer within the sense of section 13 of the BGB) above the applicable basic rate of interest, with the minimum interest applied being 12%. Proof may be submitted in support of damages being higher or lower due to delay.
6. If the Client’s financial circumstances significantly worsen or if the photography company becomes aware that their right to payment was already in jeopardy upon conclusion of the contract, the photography company shall reserve the right to only take orders against payment in advance.
7. The Client shall only be entitled to offset their claims against any claims on the part of the photography company where these counter-claims have been deemed undisputed or legally valid, or expressly acknowledged in writing by the photography company. The same shall apply if the Client were to exercise their withholding right.
8. The supplied photographs, goods or deliverables shall continue to be property of the photography company until the purchase price has been paid in full, even if parts of the total price have already been paid.
VI. Ancillary Obligations
The Client shall ensure that they possess the right to copy and disseminate any material they pass on to the photography company, as well as the consent of the person depicted in any images of people to disclose, copy and disseminate the image concerned. The Client shall be responsible for resolving any claims for compensation from third parties as a result of this obligation being violated.
VII. Warranty
1. A photograph, good or service shall only be considered defective if it is not in line with the latest technical standards, with particular regard to current developing and processing methods. Where the Client has not provided the photography company with any express instruction with regard to photograph composition, any complaints regarding imagery or technical or artistic composition are excluded.
2. In the event of legitimate cause for complaint, the photography company can choose to rectify the problem or provide a replacement. The photography company, when providing a replacement, shall be permitted an appropriate amount of time to do so, especially that required in order to produce a replacement good or deliverable. The Client shall only be entitled to make further claims if the photography company does not resolve any major defects within an appropriate amount of time or if they make two failed attempts at rectification.
VIII. Liability
1. Mandatory provisions governing product liability shall remain unaffected.
2. On the basis of legal provisions, the photography company shall assume liability in the event of breaches of warranty and personal injury as well as if they, their legal representatives or agents are guilty of gross negligence or intent.
3. If the photography company violates a fundamental contractual obligation as a result of negligence, and the failure to fulfil this obligation puts the purpose of the contract in jeopardy, their obligation to provide compensation for material damage shall be limited to compensation for the foreseeable damage which might typically occur. The photography company shall only assume liability for damage to subjects of the photograph, material, negatives or image files in the event of gross negligence or intent - unless otherwise agreed.
4. The photography company shall keep the negatives safe. They shall be entitled, but not obliged, to dispose of the negatives they have kept stored three years after the end of the contract without having to inform the Client that they are doing so. For individual images, the Client can ask the photography company to dispose of the negatives or image files at any time.
5. The photography company shall assume liability for ensuring that the photographs last and do not fade for a period of 5 years, yet only if the Client uses the photographs properly and appropriately. If the photographs are kept properly stored, they will retain their colour and quality for significantly longer. If the quality of a photograph is decreasing, it is recommended that the Client have a photograph produced of the photograph concerned, whereby it is more or less possible to achieve the quality of the original.
6. All further claims shall be excluded.
7. Insofar as the photography company’s liability is excluded or limited, this shall also apply to the personal liability of their employees, workers, representatives and agents.
IX. Data Protection
Any personal data required from the Client to do business shall be stored by the photography company. The photography company shall undertake to treat any information that comes to their attention as part of the job confidentially.
X. Final Provisions
1. If any individual provisions in these agreements prove to be ineffective, or if the act of implementing the contract reveals any gaps in need of filling, this shall not affect the validity of the remaining contractual provisions, nor shall it affect the validity of this contract as a whole.
2. The law of the Federal Republic of Germany shall apply, under exclusion of the UN Convention on Contracts for the International Sale of Goods.
3. If the Client is a trader as per the German Commercial Code, or if they are a legal entity under public law, it is hereby agreed that the photography company’s registered principal place of business shall be the exclusive place of performance and jurisdiction for any disputes arising as a result of this contractual relationship.
Michelbach, February 2019