General Terms and Conditions of Business
§ 1 Scope, definitions
(1) All offers, contracts, deliveries and services made on the basis of any orders by you, the customer, through the internet portal www.shoot-train.com of the Shoot Train Company UG (with limited liability) (hereinafter we or us or Shoot Train) shall be governed by these general terms and conditions in the version valid at the time of the order.
(2) Contracts with you shall only be able to be concluded in German or English, depending on whether you place a booking request on the German or English page of our website.
(3) Your standard business conditions do not apply, unless we expressly approve of their validity in writing.
§ 2 Services offered by Shoot Train
(1) Shoot Train shall offer you the professional organisation and carrying out of photoshoots, including related ancillary services. On the one hand, you have the opportunity to request photoshoot products which have already been predefined by us with the use of the shoot calculator. On the other, you are able to send us individual enquiries by "Individual Request" in our menu navigation at any time. These Shoot Train terms and conditions also apply to individual enquiries (§ 1).
(2) We shall carry out the work entrusted to us to the best of our ability and with the care of an expert and careful businessman and with due regard for the principles which are generally recognised by the advertising industry.
(3) We are entitled to allow for all services or parts of services to be provided by third parties.
§ 3 Shoot calculator© (services, order procedures, conclusion of contracts)
(1) The range of photoshoot services predefined by the shoot calculator can be found in the relevant specification of services ("We provide") in the shoot calculator.
(2) Depending on the photoshoot chosen, you must choose a few more additional options ("You choose") before sending your request. The choice of the particular options shall be made easier for you by the provision of lists of choices. The placing of a non-binding booking shall always be subject to the completeness of your data.
(3) You can choose your photoshoots by using the shoot calculator and you can collect them in a shopping cart by pressing the "Next" button. You can view and alter the collected photoshoots at any time ("Delete" or "Add more shoots"). By using the "Next" button, you can be presented with a summary of your gathered photoshoots. By activating the relevant function on your browser, you can move from here back to the shopping cart in order to make any further changes which are required. After entering your contact data in the available fields on the form, you shall be able to place a not yet binding booking of photoshoot products in the shopping cart by clicking on the "Send non-binding booking" button.
(4) By placing a cross next to the field "I confirm that the non-binding booking is strictly for commercial purposes and not for private use", you confirm that you are placing the request as a natural person or as a legal entity or as a legally capable partnership and that this legal transaction is being undertaken in the exercise of your business or self-employed professional activity.
(5) After receiving your non-binding booking, we shall send you an e-mail with automatic confirmation of receipt in which your choices shall again be listed and which you shall be able to print it out using the relevant function of your e-mail program. You shall then receive a briefing, in which you shall be able to provide additional information about for example your design requirements for the shoot. The automatic confirmation of receipt and the briefing shall only record that we have received your request and shall not constitute any acceptance of the request.
(6) The contract shall only come into effect with your agreement and our booking confirmation, which we shall send you by separate e-mail.
§ 4 Completion of order
(1) You shall be able to see the scope of our photoshoot services in the specification of services in the shoot calculator as well as the subsequent briefing (para. 5 of § 3 of the General Terms and Conditions of Business). We shall endeavour to meet your requirements to the best of our ability and belief and subject to availability at the location.
(2) The choice of the particular people to be involved with the photoshoot, particularly the model, shall be made by us. However, you shall be able to specify properties (e.g. age, hair colour, body size, etc.) during the briefing and we shall endeavour to take them into consideration as far as possible. The same shall apply to photographers, hair/make-up artists, stylists, the art director, etc.
(3) If you do not give us any express instructions with regard to the design of the photoshoot, any possibility of complaints with regard to the conception of the picture or the artistic and/or technical design shall be excluded.
(4) As soon as the results of the photoshoot which you have booked and any ancillary services (for example, picture processing) are available, you shall receive notification of download availability.
§ 5 Co-operation of the customer
(1) If you make templates, data or other materials available for use during photoshoots (for example, products, photographs, logos, etc.), we shall assume that you are unreservedly entitled to supply and use these materials.
(2) If a claim is brought against us by third parties as a result of the use of such templates, data or other materials, you shall consequently be obliged to indemnify us against any claims of third parties and to compensate us for any loss which occurs, including the costs of mounting a legal defence. This shall not apply if you are not responsible for such a loss.
(3) You may only use the results of our work to the extent described in § 7 of these General Terms and Conditions of Business. If third parties bring a claim against us as a result of exceeding the scope of the rights of use, you must indemnify us against any claims by third parties.
(4) By placing the non-binding booking, you shall assure that all of the information activated by you in respect of the non-binding booking (for example, name, address, e-mail address, etc.) is true. You must be absolutely sure to inform us of any changes without delay. This shall particularly apply to the primary e-mail address used for communication between you and us in the course of the processing of the order. Consequently, you must ensure that you are able to receive e-mails in the interests of allowing the transaction to proceed smoothly.
(5) With regard to the transfer of data, you ought in all cases to use up-to-date programs to protect against computer viruses, as the latter could otherwise have a detrimental effect on the processing time or could give rise to losses which shall have to be compensated by you.
(6) The safeguarding of data shall not be undertaken by us and shall be your responsibility alone.
§ 6 Impermissible content
(1) If you ask for templates etc. which have pornographic, right-wing or left-wing extremist, racist, discriminatory, youth endangering, violence glorifying or anti-constitutional content to be used within the context of the order, we shall not process the order. Our further rights and claims shall remain unaffected.
(2) In principle, we shall not check the content of works ordered by you for their legal permissibility. In particular, we shall not check whether there are provisions of competition law which would suggest that your advertisement should not be produced. Responsibility for this shall lie with you alone.
§ 7 Rights of use
(1) At the time of their coming into existence and no later than at the time of their acquisition, we shall grant to you all transferable rights required for the particular purpose of use of the photoshoot products, particularly the copyright to the use of services provided in accordance with the General Terms and Conditions of Business free from the rights of third parties. Please bear in mind that this transfer of rights does not include the right of amendment or transfer to third parties unless this is absolutely necessary for the contractual purpose of use of the photoshoot products.
(2) If we enlist the help of third parties to fulfil contracts, we shall acquire their rights to the use of copyright for you in terms of time, place, purpose of use and in any other way to the extent required and shall transfer them to you in respect of the same extent.
(3) We shall inform you about any restrictions to the rights to use of the copyright.
(4) We shall be entitled to send all works completed by us within the context of fulfilling the order to advertising, design and similar competitions for our own presentational purposes, for example on the internet site and in portfolios, brochures, presentations and exhibitions, and to exhibit them or to have them exhibited in such contexts. Personal data shall not be published.
§ 8 Retention of title
We retain legal title to any product supplied by us (e.g. data carriers, printouts, etc.) until the remuneration for such product has been fully paid.
§ 9 Prices, terms of payment, arrears, offsetting
(1) All fixed priced shoot calculator photoshoots shall be stated on our website without the applicable statutory VAT.
(2) 80% of the remuneration is to be paid immediately on conclusion of the contract. You shall receive a proper invoice with the confirmation of the order by us. The invoice amount is to be paid within 10 days. It shall not be possible for us to process the order until payment has been received. 20% of the remuneration is to be paid immediately after the shoot on receipt of our proper invoice.
(3) If you delay with the making of the payment, we shall be entitled to claim the statutory amount of interest on arrears. Notwithstanding this, we shall be entitled to claim other compensation for arrears or to enforce other rights (for example, cancellation or withdrawal).
(4) You shall only be able to offset the amount against an amount payable to you if the latter is undisputedly established by us or is legally established against us. You shall then only be able to enforce a right of retention if the underlying counterclaim is based on the same contractual relationship.
§ 10 Additional services, extension of rights of use
(1) The fixed prices established by the shoot calculator shall cover all services relating to the particular photoshoot. If you demand services which are not to be provided by us according to the specification of services or the briefing, we shall draw your attention to this and shall at the same time inform you of the costs of the additional services. The additional services shall only be provided once your consent has been received and the additional costs have been paid in advance.
(2) If you would like to use the results of our work for more than the agreed purpose of use, we shall - where possible - permit such use in return for an additional payment which is to be separately agreed, bearing in mind any rights of third parties.
§ 11 Dispatch, carnet
(1) In principle, the shoot calculator prices shall also include the costs of the digital preparation of photographs.
(2) If you wish to have printouts, data carriers, etc. sent, the costs of packaging and dispatch are to be paid separately. You should inform us of your requirements immediately after receipt of the confirmation of receipt (para. 5 of § 3). Any additional costs shall be shown in the order confirmation.
(3) If your goods or products (for example fashion collection) are to be used for a photoshoot, their transport (particularly dispatch) is not included in our fixed prices. These and any carnet costs (fulfilment of customs requirements) are to be borne by you separately.
§ 12 Delivery periods, prompt co-operation
(1) If it can be foreseen at the time of your order that the photoshoot which you have booked will not be able to be completed within an appropriate period of time, we shall inform you of this immediately. If the photoshoot is not able to be realised on a permanent basis, we shall dispense with an order confirmation and acceptance of your non-binding booking and shall inform you of this by e-mail. A contract shall not come into existence in this case.
(2) The observance of an appropriate delivery time by us shall only be possible if your acts of co-operation are completed promptly, completely and in the proper way. If you wish to provide templates, products, data and/or other materials, these must also be available within an appropriate period of time.
§ 13 Warranty, guarantee, time limitation
(1) We shall be liable for material defects in accordance with the applicable legal provisions. This shall particularly mean that you must first give us the opportunity to remedy any defects before you can enforce other rights. The choice of the kind of defect remedy shall be our responsibility. We shall be able to refuse this subsequent fulfilment if it is only possible with disproportionate costs or if it is not possible at all. You shall then have the rights which are available to you by law.
(2) You should examine our services for obvious errors immediately after delivery or download availability. If any obvious errors exist, you must notify us of them within a period of 7 working days, otherwise we shall not be able to provide a warranty. The same shall apply if you do not notify us of a defect which is not obvious within 7 working days of its discovery. In both cases, an e-mail sent prto firstname.lastname@example.org with a verifiable description of the defect shall suffice.
(3) Apart from the legal provisions with regard to a warranty, we shall not provide any guarantee with regard to the goods or services provided.
(4) Any warranty rights shall be subject to a 12-month time limitation period from the time of delivery or download availability.
§ 14 Liability
(1) The following exemptions and restrictions shall apply to liability for compensation, regardless of the other legal requirements regarding claims.
(2) We shall be liable if we bear the burden of intent or gross negligence. In the case of simple negligence, we shall only be liable in the event of the violation of a duty whose fulfilment makes it possible to undertake the proper performance of the contract and on whose observance you may as a rule rely ('cardinal duty'), otherwise compensation for losses of all kinds shall be excluded, regardless of the basis for the claim, including liability for fault on conclusion of a contract.
(3) If we are liable for simple negligence in accordance with paragraph 2, our liability shall be confined to the loss whose occurrence would typically have been expected in view of the circumstances which were known at the time of the conclusion of the contract.
(4) If we have guaranteed the quality of the service, the above exemptions from liability and restrictions shall not apply either to losses which are to be compensated in accordance with the German Product Liability Act or to personal injuries or to statutory claims.
(5) The above exemptions from and restrictions to liability shall also apply to our employees and vicarious agents as well as other third parties whom we use to fulfil the contract.
§ 15 Termination of the contract
(1) We shall be entitled to terminate the contractual relationship without notice where an application for insolvency proceedings is brought against your assets or you make a statutory declaration.
(2) In the event of the omission of an act of co-operation on your part, we shall also have the right to terminate the contract and this shall particularly apply to a failure to send the necessary models, products, data and/or other materials as well as the granting of consent to the termination of the contract. Prior to the announcement of termination, we shall stipulate a period within which you shall have an opportunity to remedy the act of co-operation.
(3) Should you unilaterally wish to end the contract early and for no reason, you shall be obliged to make the agreed payment. We are only permitted to offset that which we save in costs as a result of the cancellation of the order or that which we gain or maliciously fail to gain as a result of a different use of our workforce.
§ 16 Force majeure
(1) Disruptions to the business both in the case of our business as well as in the case of the business of a third party appointed by us, for example strikes, lock-outs and all other cases of force majeure (e. g. unpropitious weather), shall only give you the right to withdraw from the contract if you cannot reasonably be expected to wait any longer, otherwise the delivery period shall only be extended by the period of the delay.
(2) Any further liability on our part shall be excluded in these cases.
§ 17 Confidentiality
We shall treat any information which we receive from you before and during this contract as confidential and shall only make such information accessible to those employees or third parties appointed by us who require it in order to fulfil their obligations.
§ 18 Data protection
(1) We shall only gather and store such data from you which is necessary for the purposes of processing transactions. When processing your personal data, we shall observe the legal provisions. Further details can be found in the data protection declaration which can be viewed on our website.
(2) You shall be able to receive information about data stored with regard to your identity at any time on request.
§ 19 Applicable law, place of fulfilment, competent court of jurisdiction
(1) Any contracts entered into between us and the Customer shall be governed only by the law of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods (CISG), without prejudice to any mandatory conflict of laws provisions.
(2) The place of fulfilment for all obligations arising from the contractual relationship shall be the registered office of Shoot Train, Bremen, Germany, where nothing else has been established.
(3) The only place of jurisdiction for all disputes arising from or relating to the contractual relationship between you and us shall be the courts at the registered office of Shoot Train, Bremen, Germany. However, we shall also be entitled to bring judicial proceedings against you at your general place of jurisdiction.
§ 20 Final provisions
(1) This contract contains all legal agreements entered into between you and us with regard to the subject-matter of the contract. No oral subsidiary agreements exist.
(2) Should individual provisions of this contract be invalid or unenforceable, the validity of the other provisions shall not be affected by this. The invalid or unenforceable provision is to be replaced by a valid or enforceable provision which most closely resembles the invalid or unenforceable provision in an economic sense.