1. APPLICABILITY AND SCOPE OF THE GENERAL TERMS AND CONDITIONS

1.1. These General Terms and Conditions (GTC) apply exclusively to contracts concluded by Michelle Schenzel Photography, Alter Hainburger Weg 47, Bruck an der Leitha (hereinafter referred to as "Photographer") with consumers (hereinafter referred to as "Contracting Partner"). A consumer under § 1 of the Consumer Protection Act (KSchG) is any natural person who concludes a legal transaction for purposes that cannot be attributed to their commercial or independent professional activity.

1.2. The Photographer concludes contracts – unless explicitly agreed otherwise – exclusively based on these General Terms and Conditions.

1.3. The inclusion of conflicting or supplementary terms and conditions of the Contracting Partner is expressly rejected. These are only valid if and to the extent that they have been agreed upon in writing in individual cases. In particular, acts of contract fulfillment by the Photographer do not constitute acceptance of terms and conditions that deviate from these General Terms and Conditions.

1.4. Should individual provisions of the contract, including these regulations, be wholly or partially ineffective, or should they become ineffective over time, or should the contract contain a gap, the effectiveness of the remaining provisions or parts of provisions remains unaffected. This does not apply if the ineffective provision governs one of the main performance obligations. In place of the ineffective or missing provisions, the respective statutory regulations shall apply. The fact that the Photographer does not exercise individual or all of the rights to which they are entitled does not imply a waiver of these rights.

2. OFFER, CONCLUSION OF CONTRACT

2.1. The offers made by the Photographer are – unless explicitly stated as binding – non-binding and subject to change. This also applies to all information in price lists, brochures, social media posts, etc.

2.2. The assignment of a contract to the Photographer can be made in writing (via email, countersigning the offer), or orally (personally, by phone). The Photographer will send the Contracting Partner an order confirmation (acceptance of the offer) within a reasonable period after the order is received or will inform them of the rejection of the order. A legally binding contract between the Photographer and the Contracting Partner is concluded upon acceptance, thereby triggering mutual performance obligations.

3. PERFORMANCE, USE PERMISSION

3.1. The Photographer is entitled to have the order fully or partially executed by third parties, without the prior consent of the Contracting Partner. This includes the possibility for third parties to execute the entire order on behalf of the Photographer. The Contracting Partner acknowledges that the Photographer remains responsible for the proper execution by third parties, unless otherwise expressly agreed.

3.2. The delivery of the goods is at the Photographer's risk, meaning the risk of loss or damage to the goods passes to the Contracting Partner only when the goods are delivered to them or to a third party designated by them, who is different from the carrier.

3.3. Delivery/performance dates and deadlines provided by the Photographer are approximate and non-binding unless explicitly confirmed in writing as binding. Non-compliance with non-binding delivery/performance deadlines and dates does not give rise to any claims against the Photographer.

3.4. If binding delivery dates or deadlines have been agreed upon, the Contracting Partner may – unless it concerns a fixed transaction according to clause 3.5 – withdraw from the contract in case of delivery delay after setting an appropriate grace period. The withdrawal from the contract does not affect the claim for compensation for damages caused by non-fulfillment.

3.5. If performance is due at a fixed time or within a fixed period, and the Photographer falls into default, the contract is automatically dissolved unless the Contracting Partner immediately informs the Photographer that they still wish to insist on performance. Any claims for damages remain unaffected.

3.6. By purchasing a copyrighted work, whether in paper form or digital, the Contracting Partner acquires a simple (non-exclusive and non-transferable) usage license for the expressly agreed-upon purpose and within the agreed limits; in case of doubt, the usage scope specified in the invoice or delivery note is decisive. In any case, the Contracting Partner only acquires as many rights as correspond to the disclosed purpose of the contract (commissioned work). Furthermore, the Contracting Partner is permitted to make individual copies for their personal and private use in accordance with § 42 UrhG.

3.7. The usage license is granted only upon full payment of the agreed shooting and work usage fee (see clause 6.2.) and provided that proper attribution/acknowledgment as specified in clause 4.3. is made.

4. COPYRIGHT PROVISIONS

4.1. Photographs and films are copyrighted works under §§ 1, 3, 4 UrhG. All authorship and related rights of the creator (§§ 14ff, 73ff UrhG) belong exclusively to the Photographer. The Photographer has the exclusive right to the work, meaning the exclusive right to reproduce, distribute, publicly display, broadcast, and make the photograph available to the public, except for the rights specified in § 42 UrhG. Use is only permitted in accordance with a usage license granted by the Photographer (see clause 3.6.). § 75 UrhG does not apply.

4.2. Reproduction or distribution of the photographs in their original form in online databases, electronic archives, the internet, or intranets, or for internal use on data carriers, is permitted for the Contracting Partner.

4.3. The Contracting Partner is obligated to clearly and legibly (visible), especially not upside down and in regular letters, place the creator's attribution (name) or copyright notice in accordance with the WIPO Copyright Treaty (WCTA) directly on the photograph and clearly associated with it as follows: Photo: © Michelle Schenzel or by tagging @michelleschenzel on social media (in the image and/or post text). This applies even if the photograph does not have a creator's attribution. In any case, this provision applies as the creator's attribution under § 74 Abs 3 UrhG.

4.4. The photograph may be cropped and converted to black and white, but any further modification of the photograph is prohibited. The Photographer's style is protected by copyright.

4.5. In case of infringement of authorship and/or related rights, the Photographer is entitled to civil claims under §§ 81ff UrhG, including injunctions, removal, compensation for damages, publication of the judgment, etc. These claims are independent of any fault. In the event of infringement of the obligation to provide the creator's attribution, a non-material damage claim (§ 87 Abs 2 UrhG) is due, irrespective of any additional financial damage (§ 87 Abs 1 UrhG), at least an amount corresponding to the appropriate fee (§ 86 UrhG).

5. OWNERSHIP OF FILM MATERIAL AND IMAGE FILES, LABELING, ARCHIVING

5.1. The ownership of the image files remains with the Photographer. The right to hand over digital image files and to use them within the scope of the usage license according to clause 3.6. only exists after explicit written agreement and concerns only a selection of the produced image files to be mutually determined between the Photographer and the Contracting Partner. Raw image files (RAW) are not provided, as they do not correspond to the commissioned final product without the artistic style.

5.2. The Photographer will archive the recordings for one year without any obligation to do so. In case of loss or damage, the Contracting Partner has no claims.

6. FEES (WORK FEE, HONORARIUM)

6.1. The Photographer is entitled to a work fee (honorarium) based on the conditions agreed in the offer.

6.2. Changes to the order requested by the Contracting Partner during execution will be charged separately.

6.3. The Photographer is not bound to previous prices for follow-up orders.

6.4. No guarantee is provided for the accuracy of cost estimates.

7. PAYMENT

7.1. Unless a payment deadline is explicitly agreed in writing, the fee is due immediately after invoicing. If a payment deadline has been agreed, the invoices are due for payment within 10 working days after invoicing without deduction, to be received by the Photographer.

7.2. The Photographer is entitled to request an advance payment before starting the order execution and to issue partial invoices for orders with divisible services.

7.3. The Photographer is entitled to apply payments to the oldest outstanding debt, including any overdue interest and costs, in the following order: costs, interest, principal.

7.4. In case of payment delay, overdue interest of 4% per year and default interest at the statutory rate will be charged. Additionally, the Contracting Partner must reimburse the Photographer for all costs incurred in the appropriate collection of the debt, such as lawyer's fees and collection agency costs, and compensate any further damages, including damage caused by the accrual of higher interest on potential credit accounts due to non-payment.

7.5. The Contracting Partner may only offset a claim against the Photographer if the Photographer is insolvent, and the claim is related to the Contracting Partner's obligations or the claim has been legally confirmed by a court or acknowledged by the Photographer.

7.6. The Contracting Partner may only exercise a right of retention if the claims arise from the same contractual relationship.

8. LEGAL RIGHT OF WITHDRAWAL

8.1. According to § 11 of the FAGG (Consumer Protection Act), the consumer may withdraw from a distance contract or a contract concluded outside business premises within 14 days without giving any reason.

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

• In contracts for services, if the entrepreneur – based on an explicit request from the Contracting Partner and confirmation that the Contracting Partner is aware of the loss of the right of withdrawal in case of full contract performance – has started the execution of the service before the end of the fourteen-day withdrawal period, and the service has been fully provided.

• In contracts for goods that are made according to the customer's specifications or clearly tailored to personal needs.

9. DUTIES OF THE CONTRACTING PARTNER

9.1. The Contracting Partner is obligated, if necessary, to cooperate in the fulfillment of the order and to support the Photographer to the best of their ability. The Contracting Partner is responsible for obtaining any necessary third-party usage permissions for objects depicted (e.g., works of visual art, models, trademarks, photo references, etc.) and for obtaining consent to depict persons (e.g., models). The Photographer guarantees the consent of the rights holders, particularly models, only in the case of an explicit written commitment for the contractual purposes (see clause 3.6.).

9.2. Indemnification: The Contracting Partner agrees to fully indemnify and hold harmless the Photographer against any claims from third parties if they are pursued or held liable for legal violations or the behavior of the Contracting Partner.

10. DELAY IN ACCEPTANCE, WITHDRAWAL OF THE CONTRACTING PARTY

10.1. If the Contracting Party does not accept the service at the agreed time and place, or if the Photographer's performance is delayed or made impossible, the Contracting Party will be in default of acceptance. In this case, the Photographer is entitled to withdraw from the contract after setting a reasonable grace period of 14 days or to insist on performance of the contract. The Photographer is also entitled to withdraw from the contract if the Contracting Party continues to violate essential contractual obligations (cooperation duties, payment of deposit or partial payments) despite written warning and the setting of a 14-day grace period. In any case, the Contracting Party must compensate the Photographer for the damage caused by their fault.

10.3. In the event of absolutely necessary changes to the date (e.g., due to weather conditions, COVID-19 lockdown, force majeure, or illness), no fees will be charged by the Photographer, and an alternative date will be arranged free of charge. If the Contracting Party withdraws without one of these reasons, a fee corresponding to the wasted or reserved time and all ancillary costs must be paid.

11. RETENTION OF TITLE

11.1. Until full payment of the fee, the goods remain the property of the Photographer. The Contracting Party bears the entire risk for the reserved goods, particularly the risk of destruction, loss, or deterioration.

12. WARRANTY

12.1. A defect giving rise to warranty claims by the Contracting Party exists only if the Photographer deviates from what was contractually agreed. Warranty claims are only permissible for defects that existed at the time of delivery. The Photographer does not assume any additional guarantees. There are no warranty claims for performance actions of the Photographer based on incorrect or inaccurate instructions from the Contracting Party or for damages caused by improper or unsuitable use or handling.

13. LIABILITY

13.1. The Photographer is liable for damages caused by fault according to the statutory provisions. Claims for damages for property damage are excluded in the case of merely slight negligence.

14. ASSIGNMENT

The Contracting Party may only assign their rights from this contract to third parties, either in whole or in part, with the prior written consent of the Photographer.

15. DATA PROTECTION

15.1. The Photographer collects, stores, and processes the personal data provided by the Contracting Party (name, possibly address, email address, bank transfer data, phone number, social media profile, etc.) as well as data related to the business relationship (such as order date, ordered or delivered products or services, quantities, prices, delivery dates, payment and reminder data, etc.) in accordance with the provisions of data protection laws for the purpose of fulfilling the contract. The Photographer uses the personal data provided by the Contracting Party solely for contract processing and responding to inquiries, unless the Contracting Party explicitly agrees to the further use of their data, especially for advertising purposes. If there is no consent to the use of data for advertising purposes, the data will be blocked for further use after the full completion of the contract and payment of the purchase price and deleted after the statutory tax and commercial retention periods. With consent, the data will be stored for advertising purposes. The Contracting Party can revoke their consent to the collection, processing, and use of personal data at any time. Further details are available in the privacy policy.

16. USE OF IMAGES FOR ADVERTISING PURPOSES BY THE PHOTOGRAPHER

The Photographer is entitled to use photographs created by them to promote their work for publication, unless otherwise agreed in writing. This explicit and irrevocable consent is accompanied by a waiver of any claims, particularly from the right to one’s own image according to § 78 UrhG and from usage claims under § 1041 ABGB.

17. APPLICABLE LAW, JURISDICTION, CONTRACT LANGUAGE

17.1. For all disputes between the Photographer and the Contracting Party arising from the contractual relationship, including disputes over the formation and/or validity of the contract, Austrian law shall apply, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of law rules of international private law. This choice of law applies only insofar as it does not deprive the Contracting Party of the protection granted by mandatory provisions of the law of the country in which the Contracting Party has their habitual residence.

17.2. For any lawsuits against a Contracting Party of the Photographer who resides, has their habitual residence, or employment location in Austria, the competent court will be one located in the jurisdiction where the consumer has their residence, habitual residence, or employment.