General Terms and Conditions (Order Acceptance)
1 Applicability of the General Terms and Conditions
1.1 By placing an order, the principal fully acknowledges the exclusive applicability of the general terms and conditions of panoroom gmbh. Any deviating agreements must be made in writing in order to be legally effective. The present general terms and conditions of panoroom gmbh shall take precedence over any terms and conditions of the client or other third parties involved. The general terms and conditions formulated herein shall apply exclusively to contracts, orders and transactions of all kinds.
2 Copyright provisions
2.1 panoroom gmbh is exclusively entitled to all copyrights and ancillary copyrights of the representations (Articles 1, 2 para. 2 of §73 et seq. of the Copyright Law aka UrhG). Permission for use (publication rights, etc.) shall be deemed granted only upon express and written agreement. In this case, the contracting partner acquires a simple (non-exclusive and non-precluded), non-transferable (assignable) permission of use for the explicitly agreed purpose and within the agreed limits (circulation figures, time and local restrictions, etc.). In case of doubt, the extent of use stated in the invoice or delivery note shall be decisive. In any case, the contractual partner shall only acquire those rights which correspond in their extent to the disclosed purpose of the contract (order placed). In the absence of any other agreement, the permission to use shall be deemed to have been granted only for a single publication (in a single edition), only for the explicitly designated medium of the client and not for advertising purposes.
2.2 The contractual partner is obligated with each use (reproduction, distribution, consignment, etc.) to clearly and visibly indicate the manufacturer’s designation (name attribution) or the copyright notice within the meaning of the UCC (Universal Copyright Convention) as amended by BGBI (Federal Law Gazette) 108/1957, in particular not overturned and in normal letters, directly at the presentation and clearly assignable to it as follows: panoroom gmbh plus year of first publication. (e.g. “panoroom gmbh 2019”). This also applies if the presentation is not provided with a manufacturer’s designation. In any case, this provision shall be deemed to be the affixing of the manufacturer’s designation within the meaning of § 74 para. 3 of the Copyright Law (aka UrhG). If the representation on the front (in the picture) is signed, the publication of this signature does not replace if the changes are necessary according to the contractual purpose known to panoroom gmbh. By using the data provided, the client explicitly agrees to the marking by panoroom gmbh in cooperation with matterport.com.
2.3 Any modification of the data requires the written consent of panoroom gmbh. This does not apply only if the change is necessary due to the purpose of the contract known to panoroom gmbh.
2.4 The permission to use shall only be deemed granted in the event of full payment of the agreed recording and usage fee and only if a proper manufacturer’s designation/ name attribution (as stated in item 2.2) is provided.
2.5 Instead of § 75 of the Copyright Law (aka UrhG), the general provision of § 42 of the Copyright Law (aka UrhG) shall apply.
2.6 panoroom gmbh is entitled to make unrestricted use of the created works for its own advertising and marketing purposes, irrespective of an existing business relationship. If publication is not permitted for any reason, the principal shall inform panoroom gmbh of this in advance. Likewise, the principal must state to what extent and at what time the data may be published. These regulations must be defined in writing and become valid with the placing of the order.
3 Ownership of data material – archiving
3.1 panoroom gmbh has the right of ownership of the data created by panoroom gmbh. In return for a fee, panoroom gmbh shall provide the contracting partner with the data required for the agreed use and duration of use. After expiry of the agreed period of use, the data will be withdrawn by panoroom gmbh from all public platforms. Analogue prints (photographs, plans, data) shall be made available to the principal against payment and exclusively in digital form and shall become his property upon agreement. The data (photos, plans) provided after full payment may be used by the principal without any restrictions in terms of time or place, provided that the production note “panoroom gmbh” is included.
3.2 panoroom gmbh is entitled to include its manufacturer’s designation on the data in any manner it deems appropriate (including on the front page). The contracting partner is obligated to ensure the integration of the manufacturer’s designation, in particular in case of permitted transfer to third parties. If necessary, the manufacturer’s designation shall be affixed or renewed. This also applies in particular to all means of reproduction created during production.
3.3 panoroom gmbh archives the data for the agreed period of use. Thereafter, they are archived exclusively for internal and advertising purposes of panoroom gmbh. In the event of loss or damage, the contracting partner shall not be entitled to any claims.
4 Third party claims
4.1 The contracting partner is responsible for obtaining any necessary consent from depicted objects (e.g., works of fine art, samples and models/mock-ups, trademarks, photographic templates, etc.) or persons (e.g., models). The contracting partner shall indemnify and hold panoroom gmbh harmless in this respect without limitation, in particular with regard to claims under §§ 78 of the Copyright Law (aka UrhG) and § 1041 of Austrian Civil Code (ABGB).
panoroom gmbh guarantees the consent of authorized persons (authors, persons depicted, etc.), in particular of models, only in the case of express written consent for the contractual purposes of use (item 2.1).
5 Loss and damage
5.1 In the event of loss or damage to data sets produced in accordance with the order, panoroom gmbh shall be liable – regardless of the legal title – only for intent and gross negligence. Liability is limited to its own fault and that of its employees; panoroom gmbh assumes no liability for third parties. Any liability is limited to the repetition of the data creation free of charge (if and insofar as this is possible). The principal is not entitled to any further claims. In particular, panoroom gmbh shall not be liable for any travel and subsistence expenses or third-party costs or for loss of profit and consequential damages.
5.2 Item 5.1 shall apply mutatis mutandis in the event of loss of or damage to submitted templates (data, films, plans, photos, other templates, etc.) and transferred products and props. More valuable items (as of a new value of €300 net) are to be insured by the contractual partner.
6 Performance and warranty
6.1 panoroom gmbh guarantees careful execution of the order. It may also have the order executed – in whole or in part – by third parties. Unless the contracting partner issues written directions, panoroom gmbh shall be free with regard to the manner of execution of the order. This applies in particular to the image conception, the selection of the photographic models, the location of the photograph and the optical – technical means (visualization software) used. Deviations from previous deliveries do not constitute a defect as such.
6.2 No liability shall be assumed for defects resulting from incorrect or inaccurate directions of the contracting partner (§ 1168a of Austrian Civil Code [ABGB]). In any case, panoroom gmbh shall only be liable for intent and gross negligence.
6.3 The contracting partner shall bear the risk for all circumstances that are not within the sphere and sphere of influence of panoroom gmbh, such as timely provision of data, products and props, weather conditions, absence of models, travel obstructions, etc.
6.4 Shipments shall travel at the expense and risk of the contracting partner.
6.5 All complaints must be made in writing within 14 days of delivery at the latest and all documents must be submitted. After expiry of this period, the service shall be deemed to have been provided in accordance with the order.
6.6 In the event of defects, the contracting partner is only entitled to a claim for improvement by panoroom gmbh. If an improvement is impossible or rejected by panoroom gmbh, the contracting partner is entitled to a price reduction. No liability shall be assumed for negligible defects. Differences in color shall not be considered a significant defect. Item 5.1 applies mutatis mutandis.
6.7 Short selling is only available with explicit written agreement. In the event of any deferred deliveries, item 5.1 applies accordingly.
6.8 Fee rate and royalty claims shall be due regardless of whether the material is (still) protected by copyright and/or ancillary copyright.
7.1 In the absence of an express written agreement, panoroom gmbh is entitled to a fee in accordance with the respective workload and the respective valid price list of panoroom gmbh at the time the order is placed.
7.2 The fee is also due in the event of non-utilization or depending on the decision by third parties. In this case, no price reductions are granted on the order fee.
7.3 All costs arising from additional orders and subsequently requested changes shall be borne by the principal.
7.4 Conceptual services (consulting, etc.) are not included in the recording fee. The same applies to an above-average organizational effort or such meeting effort.
7.5 If the contracting partner refrains from the execution of the placed order for whatever reason, panoroom gmbh shall be entitled to half of the fee plus all incidental costs actually incurred, in the absence of any other agreement. In the event of absolutely necessary changes to deadlines by the client, the effort expended or reserved in vain plus all ancillary costs shall be paid.
8 Payments service provision
8.1 In the absence of any other express written agreement, panoroom gmbh is entitled to a payment on account in the amount of 50% of the offer sum upon placement of the order. Unless otherwise explicitly agreed in writing, the remaining fee is due for payment immediately after invoicing. Invoices are payable without any deductions and free of charges. In the case of transmission (e.g., bank transfer), payment shall be deemed to have been made only upon notification by panoroom gmbh of receipt of payment. The risk of postal charges for court filings (lawsuits, execution petitions) shall be borne by the contracting partner. If the contractual partner (client) refuses acceptance due to defective performance or asserts warranty claims, the fee shall nevertheless be due for payment.
8.2 In the case of orders comprising several units, panoroom gmbh is entitled to invoice after delivery of each individual service.
8.3 In event of default, interest and compound interest according to § 456 of the Austrian Commercial Code (UGB) for business transactions and § 1000 para. 1 of the Austrian Civil Code (ABGB) for consumer transactions shall be deemed to have been agreed upon from the due date, however at least €50 in addition to each dunning letter. panoroom gmbh shall only issue a dunning letter.
8.4 Dunning charges and the costs of out-of-court legal intervention shall be borne by the contracting partner.
8.5 Insofar delivered images, data or animations are transferred to the contractual partner’s right of use, only upon full payment of the recording fee including ancillary costs.
8.6 panoroom gmbh reserves the right to make the created data available to the principal only upon full payment. If otherwise agreed, panoroom gmbh in turn reserves the right to immediately withdraw the data from the client and all public platforms in the event of payment default (first dunning letter plus 10 calendar days).
8.7 In the event of a legal dispute, the current price list of panoroom gmbh shall be used to calculate any value in dispute. Any discounts etc. granted apply exclusively to trouble-free business relations and shall lose their validity in the event of a litigious dispute.
9 recurring services, subscription models, data hosting, POI
9.1 At the request of the principal, panoroom gmbh publishes the created data on public platforms (e.g., Immobilenscout24, Google Street View…). All associated costs are to be paid by the principal in accordance with the current price list of panoroom gmbh, unless otherwise agreed.
9.2 panoroom gmbh hosts the created data of the principal on the servers of the manufacturer of the respective camera technology. panoroom gmbh is not liable for the loss or temporary unavailability of the data. Furthermore, in such cases, no reduction or refund of the fee may be demanded by the principal. Any claim must be made to the service provider / host partner. Upon request, panoroom gmbh agrees to disclose the exact wording of the host partner, including any contact details.
Unless otherwise agreed, the costs associated with hosting are to be paid by the client in accordance with panoroom gmbh’s current price list.
9.3 With regard to items 9.1 and 9.2, unless otherwise agreed, a continuing obligation arises for a period of 12 months from the provision of the data. The agreed costs or those according to the price list of panoroom gmbh are to be paid in advance for a period of 12 months.
The continuing obligation may be terminated by the principal in writing by giving one month’s notice to the last day of the month. Otherwise, the continuing obligation will automatically renew for a successive 12 months.
9.4 If an update package (re-shooting or shooting of changes according to agreed intervals) has been agreed, the period of service provision according to items 9.1 and/or 9.2 is to be adjusted to this period. Billing will be carried out annually in advance according to item 9.3.
9.5 If the presentation of one or more POIs has been agreed upon, it is based on current panoroom gmbh price list or by agreement. panoroom gmbh explicitly reserves the right to implement such POIs according to possibilities but undertakes to do so as soon as possible. Only implemented POIs will be charged as of the time of integration.
9.6 The setup and modification fees for the POI are based on the current panproom gmbh price list. Unless otherwise agreed, the POIs shall be created for a period of 12 months from the initial setup. Item 9.3 shall apply.
10 Final provisions
10.1 The place of performance shall be Graz. The exclusive place of jurisdiction shall be the court having subject-matter jurisdiction in Graz.
10.2 The Product Liability Act (PHG) is not applicable; in any case, liability for other than personal injury is excluded if the contractual partner is an entrepreneur. In all other respects, Austrian substantive law shall apply exclusively to the exclusion of its reference norms. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
10.3 Should individual provisions of these GTC be invalid, they shall be replaced by a provision that corresponds to their meaning; likewise, provisions that are not affected by this shall remain in full force and effect.
Status as of 5 July 2019
executive director: Christian Wolf, BA