Between [ems360 digital gmbh, Griesgasse 7, 8020 Graz] - hereinafter referred to as the "Provider" - and the customers described in § 1 of the Terms and Conditions as follows:
"For the business relationship between the Provider and you, the legal as well as natural persons, hence the Customer (hereinafter "Customer"), exclusively the following General Terms and Conditions ("GTC") in their valid version at the time of placing the order apply for the entire current business transactions. Deviating general terms and conditions of the Customer do not become part of the contract or recognized unless the Provider expressly agrees to their validity in writing. By placing the order by the Customer (whether in writing or by clicking a "order now" button or equivalent), but no later than upon receipt of the delivery or acceptance of the ordered services / goods, the Customer acknowledges the sole binding nature of these GTC.
These GTC also apply to future business transactions with the Provider for business customers (B2B), even if not expressly referred to.
The customer is a consumer within the meaning of the Austrian Consumer Protection Act (KSchG) and the Austrian Distance Selling Act (FAGG), as well as the Consumer Guarantees Act (VGG), to the extent that the purpose of the ordered services cannot be predominantly attributed to his commercial or independent professional activity. In contrast, an entrepreneur is any natural or legal person or legal partnership that acts in the conclusion of the contract in the exercise of its commercial or independent professional activity.
The Provider offers digital services in particular, such as virtual tours, whereby the individual services consist of scriptwriting, shooting, editing, support, graphic design, and layout ("Project"). Consequently, the Customer can select various services from the Provider's range and order them.
These GTC are an integral part of individual service agreements or contracts for work and services. The Provider is entitled to carry out the order (in whole or in part) through qualified, non-independent employees or commercial/freelance cooperation partners.
The basis for concluding the contract is the respective offer of the Provider or the order of the Customer, in which the scope of services and the remuneration are specified. The contract is concluded by the acceptance of the order by the Provider (or the order confirmation). The acceptance must be made in writing, unless the Provider unmistakably indicates (e.g., by acting on the order) that he accepts the order.
The conclusion of the contract takes place in German language.
Offers are non-binding, subject to availability, and are valid while stocks last. They are merely an invitation to place an order unless expressly stated as binding.
The customer is obligated to complete the fields provided in the respective order form completely and truthfully.
The artistic and technical design of the work is the responsibility of the Provider. The Provider shall inform the Customer about the location and intended course of the video recordings after mutual planning.
If the customer requests changes to the timing, manuscript or script, or the already produced parts of the video before accepting the video recordings, these changes shall be at his expense, unless they involve the assertion of justified complaints of defects. If the customer has requests for changes after accepting the video, he must inform the provider of the desired changes in writing. The provider alone is entitled to make changes. Such changes, except for agreed feedback loops according to point 3.11, are at the expense of the customer.
If, for artistic or technical reasons, the customer proposes changes to the already approved project that will result in additional costs compared to the agreed fee, they require the prior written consent of the customer. Additional costs not expressly approved cannot be claimed.
Delivery times provided by the Provider are calculated from the time of data transmission by the Customer to the Contractor and are generally non-binding and mere estimates.
If the service or the goods are permanently unavailable, the Provider refrains from making a declaration of acceptance. In this case, a contract is not concluded.
The cost and risk of transporting goods (e.g., for Cardboard orders) are borne by the business customer, unless other delivery terms have been agreed upon according to the order.
The Provider shall be wholly or partially released from the timely performance of the contract if prevented from doing so by events of force majeure. These events entitle him to postpone the performance of the contract for the duration of the hindrance or to withdraw from the contract completely or partially regarding deliveries and/or services that have not yet been fulfilled. Events of force majeure such as epidemics (including Covid-19), war, civil unrest, natural disasters, explosions, and fires are equivalent to strikes, lockouts, and other unforeseeable circumstances that substantially hinder or make delivery and performance impossible.
The scope of services, order processing, and payment terms are based on the customer's order or the service description or the information in the offer. Subsequent changes to the scope of services require written form.
The customer supports the provider in fulfilling the contractually owed services to the best of their ability, if this is a prerequisite according to the nature of the matter or can reasonably be expected. This includes in particular the timely and complete transmission of all information and documents required for the provision of services. Furthermore, the customer informs about all circumstances that are relevant for the implementation of the project, even if these only become known during the course. The customer bears the costs for their cooperation themselves.
The customer is obligated to examine the documents provided to the provider for the execution of the order, such as photos, videos, texts, word and image marks, documents, and data carriers, for any third-party rights, i.e., intellectual property such as copyright, trademark, patent, and competition law, as well as any form of legally relevant protection, and guarantees that the documents are free from third-party rights and can therefore be used by the provider for the intended purpose. The provider is not liable in case of a violation of such third-party rights. If the provider is held liable for an infringement, the customer indemnifies the provider and reimburses all disadvantages arising from the claim of third parties, especially the costs of appropriate legal representation. The customer is obligated to support the provider in defending against any claims of third parties and will provide all documents to the provider without being asked. The customer will promptly provide the provider with all information and documents required for the provision of the service and legal defense. He will inform the provider of all events relevant to the execution of the order, even if these circumstances become known during the execution of the order. The customer bears the expenses incurred by the provider having to repeat or delay work due to his incorrect, incomplete, or subsequently amended information.
All services provided by the provider during the project, especially drafts, sketches, prototypes, designs, texts, and other analog or digital documents, must be reviewed by the customer and either approved or feedback provided within three working days of receipt. If feedback or approval is not provided within this time frame, the provider may not be able to meet any communicated deadlines; delays in the project will then be at the customer's expense. Unless explicitly stated otherwise in the offer, two feedback loops are agreed for all services. Each additional feedback loop will be charged at 10% of the order value. A completely new video recording will be charged based on effort. Feedback provided after approval that results in additional effort may lead to project delays and incur additional costs. If the provider realizes that they cannot meet the agreed deadlines and dates, they are obligated to inform the customer immediately in writing, stating the reasons and the expected duration of the delay.
The final acceptance by the customer is done via the client's demo page. In relation to consumers, the provider must immediately provide digital services/content either through access or download options (§17 VGG).
Maintenance of the products is not owed. Likewise, the implementation of the products/services on the customer's website is not owed.
Furthermore, the provider does not offer any services in the field of 'Home Staging'
Delivered goods remain the property of the supplier until full payment has been made. If the customer is in default of payment, the provider is entitled to demand the return of the reserved goods if a reasonable grace period is set. The customer is not entitled to pledge or assign as security goods, which were delivered under retention of title.
All prices stated on the website of the provider are exclusive of the applicable statutory value added tax and in euros.
The corresponding shipping costs (for example, for cardboard orders) are indicated to the customer in the order letter (if known at the time of order) and are to be borne by the customer, unless the customer makes use of his right of withdrawal.
In the event of a revocation, the customer must bear the direct costs of the return.
Prices in offer letters or confirmations are binding for the duration of the time specified there.
All copyrights and ancillary copyrights of the provider (§§1, 2, 3, 4, 73ff UrhG) to analogue and digital recordings are the property of the provider. Usage permits (publication rights, etc.) shall only be deemed granted if expressly agreed. In this case, the customer acquires a simple (non-exclusive and non-exclusive), temporally and spatially unlimited, non-transferable (assignable) work usage permit for the expressly agreed purpose and within the agreed limits; in case of doubt, the in the invoice or. Scope of use stated in the order letter (for example, only online, only website of the customer, etc.) authoritative. Rights of use are only granted in such designated cases after corresponding agreement between the customer and the provider.
For each use (reproduction, distribution, broadcasting, etc.), the customer is obliged to affix the manufacturer’s name (attribution) or the copyright notice clearly and legibly (visible) as follows: (c) ems360 digital gmbh. In any event, this provision shall be deemed to be the affixing of the manufacturer’s designation within the meaning of section 74 para 3 UrhG. All references to the author to all products attached and inserted by the provider may not be removed.
Any modification of the product requires the written consent of the provider. This does not apply only if the change is necessary in the opinion of the provider and the known purpose of the contract.
The usage permit is only valid in the case of full payment of the agreed admission and use fee and only then as granted, if a proper manufacturer’s designation / attribution (point 6.2) takes place. After payment, the accepted executable web package is transmitted to the customer or the web administrator named by the customer for implementation in the respective website. The provider is not responsible for the implementation.
A right to transfer digital image files or videos exists only after explicit written agreement and concerns - if no deviating agreement exists - only a selection and not all image files produced by the provider. In any case, the usage permit shall only be deemed to be granted to the extent of point 6.1.
Reproduction or distribution of recordings in online databases, in electronic archives, on the Internet or in intranets, which are not only intended for the internal use of the customer, or on removable media, is permitted only on the basis of a special agreement between the parties. The right to a backup copy remains unaffected.
The provider will archive the finished product without legal obligation for a period of one year. In case of loss or damage, the customer is not entitled to any claims.
The provider is entitled to provide recordings of any kind as well as digital image data in any suitable manner (also on the front) with its copyright designation. The customer is obliged to ensure the integrity of the manufacturer’s designation. This also applies in particular to all means of reproduction created during production or in the production of copies of digital image files.
The customer is obliged to store photographs and photographs of any kind in such a way that the manufacturer’s name remains electronically linked to the images, so that it is preserved with every kind of data transfer and the provider is clearly and unambiguously identifiable as the author of the image files.
The customer must ensure that any necessary authorizations, third-party usage permits and consent to the depiction of persons are obtained. In this respect, he shall indemnify and sue the provider, in particular with regard to claims arising from the right to one’s own image pursuant to section 78 UrhG and with regard to claims for use pursuant to section 1041 ABGB.
If the provider is commissioned by the customer with the (electronic) processing of external recordings and photographs of any kind, the customer assures that he is entitled to do so and releases the provider from all claims of third parties, based on a breach of this obligation.
In any case, any usage permits do not include the public performance of sound works in any media.
Presentation documents and completed works as well as their contents remain the property of the provider, such as developed treatments, scripts, drawings, plans, suggestions, ideas, preliminary designs, concepts, test recordings and similar documents, also individual parts thereof. Any use, in particular the transfer, reproduction and publication requires the express consent of the provider.
Any source code remains the intellectual property of the provider. In particular, the transfer of rights of use therefore does not include the right to change or process work results and other services of the provider by the customer or by third parties.
Changes to services of the provider, such as in particular further development by the customer or third parties are only permitted with the express consent of the provider - insofar as the services are protected by copyright - . For the use of services of the provider or of results for which the provider has developed conceptual or design templates, after the end of the order, it is independent of whether this service is protected by copyright or not - also requires the consent of the provider.
The provider is entitled to terminate the contract with immediate effect for important reasons. An important reason is to be assumed in particular if bankruptcy or compensation proceedings are opened against the assets of the contractual partner or an application to open such proceedings is rejected due to lack of cost-covering assets or if the customer ceases payments, or legitimate concerns about the creditworthiness of the contractual partner and the contractual partner does not provide advance payments or a suitable security upon request, or if the performance of the service for reasons for which the customer is responsible, impossible or despite setting a 14-day grace period is further delayed, or the contractual partner continues despite a written warning with a grace period of 14 days against significant obligations from the contract, such as the payment of an amount due or obligations to cooperate.
The provider is - unless an express written agreement to the contrary exists - entitled to use photographs and photographs of any kind produced by him for advertising his activity in any medium. The customer grants his express and irrevocable consent for publication for advertising purposes and waives the assertion of any claims, in particular from the right to one’s own image pursuant to section 78 UrhG as well as claims for use pursuant to 1041 ABGB.
In addition, the provider is entitled to point out the provider and, if necessary, the author on all materials or work results and in all advertising measures, without the customer being entitled to a claim for payment. The provider is entitled to point out the existing business relationship with the customer on its own advertising media and in particular on its own websites with name and company logo. The provider may in appropriate form in analogue and digital publications, In the case of exhibitions and in your own printed matter, point out the cooperation with the customer and photograph and/or illustrate all works designed and/or implemented by him and publish them as a reference.
In the absence of an express written agreement, the provider is entitled to a work wage (fee) according to its respective valid price lists, as stated in the offer and confirmed in the order letter if necessary, otherwise a reasonable fee. The Provider shall also be entitled to the fee for services if the Customer fails to use the services or if it depends on the decision of third parties.
All material and other costs (props, products, models, make-up artists, etc.), even if they are procured by the provider, must be paid separately. Travel and residence expenses are included in the offer depending on the order, if necessary - in the absence of a written agreement - charged separately (€ 0.50 per kilometer driven). The provider refers to such by himself provided control costs.
In the course of the implementation of the project, changes requested by the customer outside the service agreement shall be borne by the customer.
The net fee is understood to be plus value added tax in their respective statutory amount.
In the absence of other express written agreements, an advance payment of 50% is to be made when placing the order. Unless expressly agreed otherwise in writing, the remaining fee is due for payment within 5 working days after the end of the work, otherwise after invoicing. The invoices are payable without deduction and free of charge. The provider may, if indicated in the offer or order letter, charge individual services.
In the event of default of payment by the customer, the provider - without prejudice to exceeding claims for damages - is entitled to charge statutory default interest.
If the delivered services and/or data become the property of the customer, this will only take place with full payment of the work wage.
The customer is only entitled to offset if his counterclaims are legally established or are undisputed or acknowledged by the customer or if the provider is unable to pay. For consumers, it is also possible to offset counterclaims that are legally related to the obligation of the consumer. In addition, offsetting by the customer is excluded. In addition, the customer has a right of retention only if and insofar as his counterclaim is based on the same contractual relationship.
The statutory warranty provisions apply to consumers, which provide for a warranty period of two years from delivery for movable goods. The provider provides a warranty to entrepreneurs for twelve months from delivery; Section 924 (presumption of defectiveness) is excluded for entrepreneurs; the entrepreneur also has a duty to give notice of defects in accordance with Section 377 UGB. For consumers, a presumption of defectiveness of 12 months applies to digital content in accordance with the VGG.
An additional guarantee only applies to the goods delivered by the supplier if this was expressly stated in the order confirmation for the respective goods. Product descriptions from manufacturers of the purchased items also apply. Guarantees or warranty claims of the manufacturer remain unaffected.
Claims of the customer against the provider, its legal representatives and vicarious agents for damages are excluded for slight negligence. Excluded are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the provider, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
Furthermore, the provider shall only be liable for foreseeable damage typical for the contract, unless the customer's claims for damages are based on injury to life, limb or health.
The restrictions of paragraphs 1 and 2 also apply in favor of the legal representatives and vicarious agents of the provider if claims are asserted directly against them.
The limitations of liability resulting from paragraphs 1 and 2 do not apply if the supplier has fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same applies if the supplier and the customer have reached an agreement on the quality of the item. The provisions of the Product Liability Act remain unaffected.
Any claim for damages may only be asserted within six months of knowledge of the damage; in the case of consumers, the statutory limitation period shall apply. Claims for damages against entrepreneurs are limited to the order value excluding taxes.
Furthermore, the Provider shall not be liable for display or reproduction errors of virtual reality ("VR") and web content due to changes or (pending) updates from third-party providers (operating systems, etc.). Unless the customer has expressly agreed to a deviation upon conclusion of the contract, the provider must provide updates that are "reasonably to be expected" in the case of a one-off service and delivery of digital content, depending on the purpose and type of service. In the case of goods with digital elements, this is at least the first two years.
The VR presentation in cardboards (VR glasses) includes the common end devices supported by the respective manufacturer of the VR software; the provider is not liable for the compatibility of the cardboards with the customer's end device.
The provider is not liable for the image design, selection and presentation of any photo models, the location and the photographic means used.
No liability is assumed for defects that are attributable to incorrect or inaccurate instructions from the customer (§ 1168a ABGB). The customer also bears the risk for all circumstances that are not the responsibility of the provider, such as weather conditions during outdoor shoots, timely provision of products and props, failure of models, travel hindrances, local aggravating circumstances or unforeseeable circumstances, etc.
Color differences may occur with repeat orders or transitions in VR tours and are not considered defects.
Analysis, planning, consulting and training services are not part of the provider's services and are not owed. In particular, this warranty does not include any changes or further developments of any kind or any maintenance of software after completion of the project. In any case, technical errors that are not attributable to the provider's services are excluded from the warranty. This also applies to intervention in the source code by the customer or third parties and hosting partners.
During development, the focus is on flawless and robust technical implementation; a handicapped-accessible design is not required.
In the event that the provider makes use of software, tools or services from third-party providers in the course of implementation, it expressly acts only as a consultant and intermediary for the provision of its own services.
The source code is not owed and remains with the provider.
VR solutions are VR 360° media content. The provider uses and ships standard VR 360° cardboard glasses. The operating instructions supplied must be observed. The same applies to safety instructions. The provider is not liable for any symptoms arising from the use of VR 360° content. The customer is responsible for the use and any symptoms that may occur (e.g. involuntary movements, altered vision; dizziness; drowsiness; eye or muscle twitching/fatigue; confusion; nausea; unconsciousness; convulsions; headaches; cramps and/or disorientation).
Contracts between the provider and the customer shall be governed by the law of the Republic of Austria, excluding the conflict of law rules and the UN Convention on Contracts for the International Sale of Goods. The statutory provisions restricting the choice of law and the applicability of mandatory provisions, in particular of the country in which the customer as a consumer has his habitual residence, remain unaffected.
If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from contractual relationships between the customer and the provider is the registered office of the provider.
The contract shall remain binding in its remaining parts even if individual points are legally invalid. The ineffective points shall be replaced by the statutory provisions, if any. However, if this would constitute an unreasonable hardship for one of the contracting parties, the contract as a whole shall become invalid.
References and links to external sites are only signposts. The provider does not identify with the content of external sites to which reference or links are made. The provider is only liable for linked pages in accordance with § 17 ECG. If illegal content is detected on a linked page, the provider requests notification and will delete the link after checking. The creation of links to the provider's website is only permitted with express written consent.
The provider reserves all rights, in particular trademark rights and copyrights, to the entire content of the VR 360° solutions supplied, in particular to trademarks, logos, texts, graphics, photographs, layout and music. Unless use is permitted by law, any use of the content of the website, in particular storage in databases, reproduction, distribution or processing, requires the express written consent of the provider. All product images are symbolic images.
ems360 digital gmbh
neubaugasse 24, 8020 graz
+43 676 38 44 548
www.ems360.digital