General Terms and Conditions of GotPhoto for Studios located in Canada
1. Content and conclusion
1.1 Parties and subject. These General Terms and Conditions (hereinafter referred to as the “Terms”) regulate the legal relationship between Fotografen Online Service GmbH, Greifswalder Straße 207, 10405 Berlin, Germany (“GotPhoto”) and its customers (“Photographer”) with regard to the provision of an online platform with which the Photographers can offer and distribute their works and other services to their customers (“End Customers”). GotPhoto does not provide its services to consumers, but exclusively for the purposes of the Photographer’s commercial or independent professional activity and only to persons of legal age.
1.2 No divergent regulations. The Photographer’s terms and conditions do not bind GotPhoto unless GotPhoto has expressly agreed to their validity in writing. Agreements, in particular verbal subsidiary agreements, commitments, guarantees and other assurances by GotPhoto’s employees, only become binding upon written confirmation by GotPhoto.
1.3 Obligations in electronic business transactions. The provisions of § 312i para. 1 no. 1-3 BGB (German Civil Code) on general obligations in electronic business transactions are hereby waived
1.4 Conclusion of the contract. The Photographer can register on www.gotphoto.com for a free 14-day test phase to test the full range of features of the software of GotPhoto. Registration is only possible if the customer has previously accepted these conditions by selecting the checkbox “I have read and accepted the GTC” and thereby included them in its application. By providing the free test account by GotPhoto, a contractual relationship between the Photographer and GotPhoto is initially established free of charge in accordance with these Terms. At any time during the free trial period,,, the Photographer may opt for a tariff that continues to be free of charge or a tariff that is subject to a fee, each of which continues to be subject to these Terms. If the Photographer has not yet opted for a paid tariff until the end of the free trial period, the Photographer’ account is automatically changed to a tariff that is free of charge with a reduced range of features. When ordering a chargeable rate, the Photographer’s entries shall first be displayed again on an order page. From the order page, the Photographer can still make corrections to his entries. Only when the Photographer has clicked the “Change Plan” button on the order page, does it submit a legally binding offer for a chargeable tariff. The Photographer shall then receive an e-mail confirming receipt of the order for the chargeable tariff. The contract for the chargeable tariff shall only be concluded when the Photographer receives an e-mail in which GotPhoto also declares acceptance of the order. The declaration of acceptance can also be made in the same e-mail with which GotPhoto confirms receipt of the order.
1.5 Retrievability of the contract text. This text of the contract can be retrieved via www.gotphoto.com/gtc-ca and is also available there for the Photographer to download and save locally as a PDF. The free Adobe Acrobat Reader is required to view the PDF (http://get.adobe.com/de/reader/).
1.6 Other details. The contract is concluded in English.
2. Services from GotPhoto
2.1 Online-Service. GotPhoto provides the Photographer with an online platform with the help of which the Photographer (i) can present itself and its services as a Photographer on the Internet with a subdomain chosen by it (in the form selectedsubdomain.gotphoto.com) or a top level domain registered and administered by itself (“Web Presence”), and (ii) can offer and sell its photos online in the form of photo products (paper photo, poster, printed mugs, etc.) or as digital image files (“Online Shop”, Web Presence and Online Shop together “Online-Service”). GotPhoto acts as a pure technical service provider of the Photographer. GotPhoto provides the Online-Service to the Photographer for the Photographer’s own business purposes as a photographer in the exercise of its commercial or independent professional activity. The transfer of use of the Online-Service to third parties is prohibited. Details of the services offered by GotPhoto (e.g. storage space) can be accessed via the pages https://www.gotphoto.com/features/ and https://www.gotphoto.com/pricing in their respective current versions.
GotPhoto owes the Photographer only the provision of those services which are included in the tariff selected by the Photographer when placing the order at the time of conclusion of the contract.
GotPhoto reserves the right to display advertisements on the web presence and in the Online Shop of the Photographers, who use a tariff without a subscription fee.
2.3 Photo products. Insofar as the Photographer purchases photographic products for its End Customer, the “Special terms for the purchase of photo products” (clause 13. below) shall apply.
2.4 Availability. GotPhoto provides the Online-Service to the Photographer with an availability of 97 % on a monthly average during the operating period. GotPhoto provides its service at the connection point of the data centre used by GotPhoto to the Internet.
Not included in the operating time are maintenance windows (e.g. installation of updates or upgrades) of up to 8 hours per calendar month announced by GotPhoto by e-mail. GotPhoto will endeavour to schedule maintenance work at night (24:00 to 5:00 CET). GotPhoto will notify the Photographer of planned maintenance work in due time.
GotPhoto shall be released from its obligation to create or maintain the accessibility of the Online-Service if and to the extent that the connection is disrupted or fails due to circumstances beyond GotPhoto’s control and for which GotPhoto is not responsible (e.g. due to a network failure at the respective internet service provider). As soon as GotPhoto becomes aware of such an interruption, GotPhoto shall inform the Photographer thereof without delay in a suitable manner. The Photographer undertakes to provide GotPhoto with contact details for this purpose and to keep GotPhoto up to date.
When calculating the availability actually achieved, failures of the Online-Service due to force majeure (e.g. strike, riots, natural disasters, epidemics) shall not be considered. Also disregarded are non-availabilities of the Online-Service and blockages by GotPhoto, which GotPhoto may consider necessary for security reasons, provided that GotPhoto had taken reasonable precautions for the security of the service (e.g. denial of service attack, serious security vulnerability in a used third-party software without an available patch). The same applies to the installation of urgent security updates outside of scheduled maintenance windows, which is necessary to avoid significant disadvantages.
2.5 Changes in performance. GotPhoto can change the Online-Service (including the system requirements) for good cause. Such a reason exists in particular if the change is necessary due to (i) a necessary adaptation to a new legal situation or jurisdiction, (ii) changed technical framework conditions (new browser versions or technical standards), or (iii) the protection of system security. In addition, GotPhoto may change the Online-Service appropriately in the context of further development (e.g. deactivation of old functions, which have largely been replaced by new ones). If the change would not only insignificantly disturb the contractual balance between the parties, the unilateral change is not permissible. In the event of changes that are not only insignificantly disadvantageous for the Photographer, the following shall apply: GotPhoto shall inform the Photographer of the change as a rule two months before it comes into force. In this case, the Photographer can terminate the contract extraordinarily within six weeks of receipt of the notification of change with effect from the date on which the planned change takes effect. If the Photographer does not terminate the contract, this shall be deemed to be consent to the amendment. GotPhoto shall draw the Photographer’s attention to this consequence in the notice of amendment. Any remuneration paid in advance shall be refunded to the Photographer on a pro rata basis in the event of extraordinary termination.
3. Legal relationship with the End Customer
3.1 End Customer Relationship. The contractual partner of the End Customer is exclusively the Photographer, who acts towards them in its own name and on its own account. This shall also apply to the sale of photographs in print form or as digital image files. The Photographer is solely responsible for the arrangement of the legal relationship between the Photographer and the End Customer. In this respect, the Photographer shall be free to determine its conditions (pricing, general terms and conditions, etc.), but shall make the necessary agreements with the End Customer for the processing of payments in accordance with Section 7.2. Due to changes in payment processing (e.g. addition of new payment methods for End Customers), it may be necessary for the Photographer to adjust its GTC vis-à-vis the End Customer accordingly.
3.2 Direct Services. If GotPhoto wishes to offer services to the Photographer’s End Customers in the future in connection with the Online Shop, which require a direct customer relationship between GotPhoto and the End Customers, GotPhoto shall obtain the Photographer’s consent in advance. This can be done in writing, by e-mail or via the online portal.
3.3 Sample documents. Insofar as GotPhoto provides the Photographer with sample texts for general terms and conditions and data protection notices for the Photographer’s web presence and its Online Shop, this shall be deemed to be a free-of-charge courtesy service which is not owed by GotPhoto. It is the Photographer’s responsibility to check and adapt these documents, if necessary, by consulting external parties.
3.4 Taxes and levies. The Photographer shall be responsible for determining whether and which taxes, customs duties or other levies are due in relation to the End Customers and for paying the VAT shown in the End Customer invoices to the competent tax office. GotPhoto shall issue the invoices automatically in accordance with the Photographer’s specifications; In this respect there is no duty of control on the part of GotPhoto.
4. Duties and obligations of the photographer
4.1 Data. The Photographer is obliged to fill in all required mandatory fields and to provide GotPhoto with all information correctly and completely and to update it immediately in the event of changes (e.g. relocation), in particular all information for the imprint (e.g. summonable address) as well as the invoice information settings (e.g. VAT rate). Upon request by GotPhoto, the Photographer shall provide suitable proof of identity.
4.2 Observance of applicable regulations. The Photographer is obliged to observe all applicable regulations and laws when using the Online-Service, in particular criminal-, youth protection-, copyright-, trademark-, likeness-, personality-, competition-, telemedia- and data protection law. This applies in particular to
The choice of Subdomain or Top Level Domain,
Data protection consent and information obligations,
the general terms and conditions used by the Photographer towards End Customers, and
the posting of content (see also clause 5).
4.3 Access data. The Photographer shall treat its access data confidentially, keep them safe, not make them accessible to third parties and report any loss to GotPhoto without delay.
4.4 Prohibitions. The Photographer warrants and guarantees vis-à-vis GotPhoto to refrain from,
posting content that contains malware,
using the Online-Service as a hosting service for content which is not directly attributable to its activity as a photographer (e.g. music archive, cinema films),
to offer images in the Online Shop, which were not created by him, unless GotPhoto has given its consent in advance, which GotPhoto may not unreasonably withhold.
4.5 Sale of individual photo products only. The photographer shall only offer photo products via the Online Shop which are not prefabricated and for the production of which an individual selection or determination by the End Customer is decisive or which are clearly tailored to the End Customer’s personal requirements, for which the End Customer is not entitled to a right of withdrawal.
4.6 Backup copies. It shall be incumbent upon the Photographer to keep copies of the Photographer content (in particular texts and photos) posted by it and to make regular back-up copies. If the Photographer breaches this obligation, GotPhoto’s liability for loss of data, for which GotPhoto is responsible, shall be limited to the amount of such damage as would have occurred, if the Photographer had made proper regular backups.
4.7 Tax relevant data The Photographer is responsible for storing data in accordance with the statutory requirements (in particular the provisions of commercial and tax law).
5. Content posted by the photographer
5.1 Rights of use The Photographer hereby grants GotPhoto the gratuitous, non-exclusive right, limited to the term of the agreement, to use the photos, texts and other content (“Photographer Content”) posted by the Photographer in the Online-Service, exclusively for the purpose of providing the Online-Services. This includes, in particular, storing the Photographer Content on servers of a data centre used by GotPhoto, reproducing it to the extent required (e.g. in backups, creation of prints), editing it (e.g. creation of thumbnails) and making it publicly accessible.
5.2 Power of disposal The Photographer hereby warrants to GotPhoto that the Photographer holds all rights to the Photographer Content and has obtained all consents, which are necessary to grant GotPhoto the rights granted in this agreement. This includes in particular rights of use under copyright law, trademark and other labelling rights, ancillary copyrights and any necessary consents from persons depicted.
5.3 Legality; No obligation of GotPhoto to audit Furthermore, the Photographer warrants to GotPhoto that the Photographer Content does not violate any applicable laws or other regulations, in particular under criminal law (e.g. prohibition of the dissemination of pornography), competition law and the law for the protection of minors. GotPhoto is not obliged to actively check or monitor the Photographer Content for its legality. However, if GotPhoto obtains positive knowledge of illegal Photographer Content or illegal activities of the Photographer, GotPhoto is entitled to temporarily interrupt the accessibility of the Online-Service for the Photographer. Further details are regulated in clause 6 below.
6.1 Blocking due to breach of duty. If the Photographer (i) defaults on its payment obligation or (ii) culpably breaches its contractual obligations in any other way to a not merely insignificant extent, GotPhoto shall be entitled to suspend the provision of services in whole or in part until the breach of contract has ceased, e.g. by taking the web presence in the Online Shop offline or by blocking or deleting affected images (blocking).
The blocking shall be limited, as far as possible, to the allegedly infringing Photographer Content or activities. Before blocking, GotPhoto shall inform the Photographer of the breach of duty in writing or by e-mail and request the Photographer to remedy the breach or to cease and desist (warning), unless GotPhoto cannot reasonably be expected to do so (e.g. inability to pay of the Photographer). The warning will generally be issued at least one week prior to a blocking, except in case of imminent danger (e.g. infringing content). In the warning, GotPhoto will point out the impending suspension respectively GotPhoto will inform the Photographer of the suspension without delay. The Photographer shall remain obliged to pay the remuneration even during the blocking. The blocking will be lifted as soon as the infringement has ended or the suspicion of an infringement is invalidated to the conviction of GotPhoto.
6.2 Other cases. Clause 6.1 shall apply mutatis mutandis if (i) third parties approach GotPhoto with a plausible allegation that the Photographer’s use of the Online-Service is unlawful (e.g. Photographer Content infringes third party rights) or GotPhoto has evidence to this effect from its own knowledge, or (ii) GotPhoto has evidence that the Photographer’s customer account is being misused by third parties.
7. Remuneration, payment processing and settlement
7.1 Remuneration. The Photographer shall owe GotPhoto for the use of the Online-Service depending on the tariff selected in each case (i) during the term of the contract no monthly subscription fee or a fixed monthly subscription fee, (ii) a service fee depending on the scope of use (e.g. per sold image or print) in accordance with the GotPhoto price list valid at the time of the order (available at https://www.gotphoto.com/pricing/) and (iii) a fee for chargeable additional services used by the Photographer. If photo products are ordered from GotPhoto, the purchase price owed in each case and shipping costs shall also be incurred; the “Special Terms for the purchase of photo products” (clause 13 below) shall apply in this respect. Depending on the selected tariff, the service fee is a certain proportion of the gross turnover charged to the End Customer.
7.2 Payment processing. GotPhoto commissions external service providers with the processing of payments concerning claims of the Photographer against End Customers from transactions which End Customers have made via the Online Shop. The Photographer gives its consent to this and will make all declarations required for the payment processing and provide cooperation, whether vis-à-vis GotPhoto or vis-à-vis the service provider commissioned by GotPhoto. The risk of default by End Customers shall be borne by the Photographer. Depending on the tariff chosen by the Studio, either GotPhoto or the payment service provider charges the costs for payment processing to the Studio. GotPhoto is not obliged to collect payments (e.g. application for default summons, enforcement, etc.).
7.3 Settlement. Unless otherwise agreed in writing, GotPhoto invoices the Photographer on a monthly basis. For the term of the agreement, the Photographer authorises GotPhoto to collect GotPhoto’s receivables from the Photographer that arise in connection with orders placed by the Photographer’s End Customers (service fee, purchase prices for any photo products ordered and shipping costs as well as other services commissioned in individual cases) from the Photographer’s payment account already at the time the payment is received from the End Customer. The Photographer shall make all declarations and provide all cooperation required for this collection of receivables by GotPhoto. The subscription fee and any other costs (e.g. costs for image editing commissioned by the Photographer), which cannot be collected from the Photographer’s payment account at the end of the month at the time of invoicing due to lack of funds, shall be collected by GotPhoto via the means of payment deposited by the Photographer.
7.4 Online-Invoice. Invoices shall be issued in principle by GotPhoto online by placing the invoice as a downloadable and printable PDF file in the Photographer’s online account and a supplementary notification thereof made by e-mail (“Online-Invoice”). There is no entitlement to digitally signed invoices. Invoices are due for payment within 14 calendar days.
7.5 Net prices. All prices are subject to the applicable statutory value added tax, unless explicitly stated otherwise.
7.6 Default of payment. GotPhoto shall issue an Online-Invoice to the Photographer in each case in accordance with the VAT regulations and collect the receivable on the due date via the means of payment deposited by the Photographer. Alternatively, the Photographer shall make payment to the account of GotPhoto designated in the Online-Invoice within 14 days of the invoice being issued, without any deduction for GotPhoto and free of fees and charges. The date of receipt by GotPhoto shall be decisive for the date of payment. The Photographer is in default at the latest 10 days after the due date of the claim, without the need for a reminder. If the payment deadline is exceeded, at the latest from the date of default, GotPhoto shall be entitled to charge interest at a rate of 9 percentage points above the respective base interest rate. GotPhoto reserves the right to claim further damage caused by default.
If the Photographer is in default with the payment of due receivables for more than 6 weeks and is responsible for this, GotPhoto shall be entitled to block the Photographer’s administration rights. GotPhoto shall notify the Photographer of the blocking without delay, stating the reasons, and request the Photographer to settle the due claims. The blocking of the administration rights shall be lifted as soon as the Photographer’s default has ended, i.e. all due claims of GotPhoto have been settled. The Photographer shall remain obliged to pay the agreed remuneration even during the period of blocking, if he/she is responsible for the default.
8. Data protection
8.1 Data protection and data processing. The Photographer is entitled to the data (e.g. addresses and orders of end customers) (“Customer Data”) entered by the End Customer in the course of using the Online Service. No Customer Data in this sense is data from the provision of services which FOS provides directly to End Customers pursuant to section 3.2. Insofar as the Customer Data is personal data, the following shall apply: FOS processes the Customer Data as a commissioned data processor within the meaning of Art. 28 GDPR exclusively on behalf of and in accordance with the Photographer’s instructions and solely for the purpose of providing the Online Service. This commissioned processing shall be governed by the provisions of the commissioned processing agreement, which is attached to these Terms and Conditions as an appendix and can be accessed via www.gotphoto.co.uk/dpa.
9. Claims for defects
9.1 Freedom from defects and condition. GotPhoto warrants the technically flawless functioning and availability of the Online-Service in accordance with these Terms.
GotPhoto is not responsible for the functioning and usability of the Photographer’s local IT infrastructure, which the Photographer requires to access the Online-Service.
GotPhoto shall not be liable to the Photographer for damage of any kind whatsoever caused by circumvention of the password protection and similar protective devices by way of “hacking” of the Online-Service. GotPhoto and the Photographer agree that a binding assurance of the security of these protective devices is not possible due to the manifold, rapidly developing possibilities for unauthorised third parties to intervene on and via the Internet.
9.2 Remedying defects. GotPhoto shall remedy defects in the Online-Service within a reasonable period of time. GotPhoto shall be entitled to show the Photographer temporary workaround options and to remedy the defect later by adapting the underlying software, provided this is reasonable for the Photographer.
9.3 Initial impossibility. The strict liability for initial defects pursuant to § 536a para. 1, Alt. 1 of the German Civil Code is excluded. The fault-based liability of GotPhoto remains unaffected by this.
9.4 Statute of limitations. Claims for defects shall become statute-barred within twelve (12) months after the statutory commencement of the limitation period. Claims for fraudulent and intentional breach of contract remain unaffected.
9.5 Statutory regulation. In all other respects, the statutory rules on liability for defects shall apply.
10. Duties to indemnify
10.1 Duty to indemnify. If third parties, including state authorities, assert claims respectively infringements against GotPhoto based on the fact that the Photographer has culpably breached the guarantees and obligations contained in clauses 4.1, 4.2, 5.2 or 5.3 (e.g. posting of infringing images), the following shall apply: The Photographer shall indemnify GotPhoto against such claims to the full extent and upon first request, provide GotPhoto with reasonable assistance in the legal defence and indemnify GotPhoto against the costs of the legal defence to the full extent and upon first request.
10.2 Requirements. A prerequisite for the indemnification obligation pursuant to Section 10.1 is that GotPhoto immediately informs the Photographer in writing of any claims asserted, does not make any concessions or acknowledgements or declarations equivalent thereto and enables the Photographer to conduct all judicial and extrajudicial negotiations regarding the claims at the Photographer’s expense. This shall not apply insofar as GotPhoto is a necessary party of the proceedings. Insofar as GotPhoto culpably fails to meet these requirements, the Photographer’s indemnification obligation shall be reduced in accordance with GotPhoto’s contributory negligence.
11. Limitation of liability
11.1 With the exception of liability under the German Product Liability Act (ProdHaftG), due to fraudulent concealment of a defect, due to a guarantee that GotPhoto has assumed in writing for the quality of the services owed, or for damages arising from culpable injury to life, limb or health, GotPhoto is only liable to the Photographer for damages in the event of a breach of obligations arising from the contract concluded between GotPhoto and the Photographer in accordance with the following provisions, without, however, waiving the statutory requirements for such liability.
11.2 GotPhoto shall only be liable for damages – irrespective of the legal grounds – in the event of culpable breach of material contractual obligations and in the event of intentional or grossly negligent breach of other contractual obligations owed to the Photographer. Material contractual obligations are obligations the fulfilment of which is essential to the proper performance of the contract and on the fulfilment of which the Photographer regularly relies and may rely.
11.3 In the event of a breach of material contractual obligations due to simple negligence, GotPhoto’s liability shall be limited to compensation for the foreseeable, typically occurring damage.
11.4 GotPhoto’s liability is excluded in the event of a simply negligent breach of other, i.e. non-substantial, contractual obligations owed to the Photographer.
11.5 The above limitations of liability shall also apply in the event of breaches of duty by or in favour of persons for whose fault GotPhoto is responsible in accordance with statutory provisions.
11.6 A change in the burden of proof to the detriment of the Photographer is not associated with the above restrictions.
12. Term and termination
12.1 Term and termination. The contract begins with the provision of a test account and is concluded for an indefinite period. It may be terminated by either party with two weeks’ notice, provided that no minimum term results from the selected tariff. The right of both parties to extraordinary termination remains unaffected.
12.2 Tariff change. The change to a higher tariff is possible at any time. Switching to a lower tariff, including a subscription fee-free tariff, is possible until the end of the term of the existing contract.
12.3 Form. Notice of termination can be given by e-mail or in writing.
12.4 Data at the end of the contract. At the end of the contract term, the Photographer can no longer access his/her Customer Data and Photographer Content. It is the Photographer’s responsibility to export the master data of his customers before the end of the contract term using the export function of the Online-Service and to store it on his/her premises for further use. GotPhoto is not obliged to provide any further disclosure (e.g. provision of certain data as an SQL dump or in a certain format). Upon termination of the contract, GotPhoto shall anonymise or delete the customer data and Photographer Content, unless GotPhoto is legally obliged to retain them. If deletion is only possible with disproportionate effort (e.g. in backups), GotPhoto is entitled to block the data instead.
13. Special terms for the purchase of photo products
13.1 Scope of application. Insofar as the Photographer orders photos in print form (paper photo, poster, imprint on mugs, etc.) (“Photo Products”) from GotPhoto via partner laboratories of GotPhoto, this clause 13 shall take precedence over the other provisions of these Terms.
13.2 Conclusion of sales contracts for Photo Products. If an order is received from an End Customer for Photo Products of a partner laboratory in the Photographer’s Online Shop, this shall be deemed to be an offer by the Photographer to GotPhoto to purchase corresponding Photo Products at GotPhoto’s current price list, which can be viewed in the administration area of the Online-Service. GotPhoto shall use the partner laboratory selected by the Photographer as its vicarious agent. GotPhoto shall send the Photographer a corresponding order confirmation. This shall at the same time constitute an acceptance of the offer by GotPhoto, unless the order confirmation states otherwise.
Orders for which payment has not yet been received by GotPhoto or the Photographer can be cancelled by the Photographer at any time free of charge. Orders for which the End Customers or the Photographer have selected a payment method that provides for payment of the order, after production of the Photo Products has begun – for example, payment on account – are excluded from the possibility of free cancellation. The Photographer has the option to activate and deactivate payment methods in the administration area of the Online-Service.
13.3 Delivery and shipping costs; delay. GotPhoto respectively the partner laboratory shall deliver the Photo Products directly to the End Customers, unless it is an order placed by the Photographer itself or orders placed by the End Customers that are sent collectively to the Photographer using the “collective shipping” function. Shipping costs shall be charged in accordance with the GotPhoto price list, which can be viewed in the administration area of the Online-Service.
Delivery periods and dates are only approximate unless GotPhoto has expressly designated them as binding in writing.
GotPhoto shall not be liable for the impossibility or delay in the provision of the service insofar as this is caused by force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind; mobilisation; war; riot; strike; traffic accident; natural disasters; sabotage; direct and indirect consequences of a pandemic or epidemic, such as quarantine, border closures or other sovereign or official interventions and measures; as well as other events comparable to the aforementioned examples) for which GotPhoto is not responsible. If such events make it considerably more difficult or impossible to provide the services owed by GotPhoto and if the hindrance is not only temporary, GotPhoto shall be entitled to withdraw from the contract. In the event of temporary hindrances, the deadlines agreed for the provision of the services shall be extended or the respective deadlines shall be postponed by the period of the hindrance plus a reasonable restart period. Insofar as the Photographer cannot reasonably be expected to accept the service as a result of the delay, it may withdraw from the contract by means of an immediate written declaration to GotPhoto.
13.4 Payment. Clause 7 shall apply for the payment.
13.5 Warranty. The Photo Products are defective in quality if the Photographer proves that at the time of the transfer of risk they noticeably deviate from the contractually agreed type, quantity and quality. Risks of suitability and use shall be borne solely by the Photographer. The Photographer’s warranty rights shall be subject to the Photographer having duly complied with his statutory duties of inspection and notification of defects. Insofar as there is a defect in the Photo Products, for which GotPhoto is responsible, GotPhoto shall, at its discretion, remedy the defect or supply a replacement. GotPhoto does not provide any warranty for material defects caused by unsuitable or improper use, by faulty or negligent handling, nor for the consequences of improper modifications made by the Photographer or third parties without GotPhoto’s consent. The same shall apply to defects which only insignificantly reduce the value or suitability of the Photo Products.
Further claims due to the defectiveness of the Photo products do not exist. Recourse to competing bases for claims, in particular also of a non-contractual nature, is excluded.
Any claims of the Photographer for delivery of defective Photo Products shall become statute-barred one (1) year after the statutory commencement of the limitation period. Claims for fraudulent and intentional breach of contract shall remain unaffected. Replacement delivery or rectification of defects shall not lead to a restart of the limitation period.
13.6 Purchase from other laboratories. If the Photographer orders Photo Products from laboratories other than the partner laboratories, the contract for the purchase of the Photo Products shall not be concluded between GotPhoto and the Photographer but directly between the Photographer and the respective laboratory. The terms and conditions of the respective laboratory shall then apply; GotPhoto merely transmits the Photographer’s offer to the laboratory.
14. Final clauses
14.1 Set-off; retention. The Photographer shall not be entitled to set off any claims against claims of GotPhoto unless the counterclaim is undisputed or has been finally determined by a court of law. Furthermore, the Photographer is not entitled to withhold payments or to suspend other obligations incumbent upon it, unless GotPhoto is in material breach of obligations due under the same contractual relationship despite written warning and has not offered adequate security. § Section 215 BGB (German Civil Code) shall not apply. In the event of defects in the delivery or service, the Photographer’s rights shall remain unaffected.
14.2 Applicable law. This contract shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
14.3 Place of performance; place of jurisdiction. The place of performance for all obligations arising from the contractual relationship with the Photographer shall be the registered office of GotPhoto.
The Parties shall attempt to resolve any disputes arising out of or in connection with the legal relationship between them promptly in partnership and in good faith through negotiation.
If the parties are unable to settle the dispute by negotiation within 30 days after one party has requested the other party in writing to enter into negotiations, the courts at GotPhoto’s registered office shall have jurisdiction over all disputes arising from or in connection with the legal relationship existing between GotPhoto and the Photographer. However, GotPhoto may, at its discretion, also sue the Photographer at the Photographer’s place of jurisdiction.
14.4 Partial ineffectiveness. Should any provision of these Terms be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of these Terms. The parties agree already now to replace the invalid provision with a legally permissible provision that comes as close as possible to the economic intention. This shall also apply in the event of an unintentional loophole.
* * *
Last update: September 1, 2022