SCOPE OF APPLICATION

1. These General Terms and Conditions (hereinafter “GTC“) apply to all orders and contractual relationships between the customer (hereinafter “Customer“) and ULTRASPHERES as the provider (hereinafter “Provider“), including future orders, and even if the GTC are not expressly referred to. Supplementary, deviating or conflicting business or contractual conditions of the customer (regardless of their form or type) have no effect and are hereby expressly rejected.

BASIS

2. The Provider provides the Customer, an entrepreneur within the meaning of § 1 of the Austrian Commercial Code (UGB), with image material and so-called “HDR spheres” that the Customer shall have the right to use for a certain period of time, restricted or unrestricted, pursuant to the agreement. The Provider performs its services independently (through its organs and employees), but is entitled to involve external cooperation partners (such as freelancers or other subcontractors) in addition to its own employees.

3. The contract is concluded either through a written confirmation sent to the Customer or by the Provider delivering its services.

CUSTOMER’S OBLIGATIONS

4. The Customer is obligated to ensure that the Provider has at all times access to all information, circumstances, documents and materials that are necessary for the fulfilment of its services – in particular where such services are provided individually. The Customer shall provide these to the Provider in a timely, complete manner and free of charge, and shall also give corresponding instructions (cooperation obligation). The Provider has no obligation to warn the Customer in respect of their suitability / completeness for the performance of the order.

INTELLECTUAL PROPERTY RIGHTS, LICENSE

5. The works, graphics, concepts, ideas, renderings, composites, illustrations, HDR spheres, backplates videos, photographs, including all preliminary and intermediate results and individual parts thereof (collectively also “Work Results“), created by the Provider (and/or its organs, employees respectively) constitute works within the meaning of copyright and remain the property of the Provider, as do the individual pieces and original designs. Customer’s cooperation that may be necessary in the context of order fulfilment does not create joint authorship.

6. The Provider (and/or its organs, employees respectively) is at all times entitled to assert the applicable moral rights under copyright (as well as similar rights) with regard to the Work Results, in particular to demand the placement of names, company name and/or logo in a recognizable manner on / on the workpiece (as well as reproductions) itself, and to specify their respective type, size and shape. If this is not technically possible or advisable, the Provider and the Customer will agree on a suitable form of reference (in the imprint or the like).

7. In the absence of an agreement to the contrary (see clause 15), the Provider grants the Customer a non-exclusive license to the Work Results as delivered.

8. In the absence of an agreement to the contrary, the Customer only acquires this license to the extent and for the purposes that are absolutely necessary for the fulfilment of the order, in terms of time, space, and content. Any other or further use, and in particular the editing, modification (including updating / further development), or imitation of the Work Results is prohibited unless expressly approved by the Provider in return for separate remuneration.

9. The rights shall be granted for the agreed period (see also clause 36.), which is generally renewable. After expiry of the license period, the Customer is no longer permitted to use the Work Results, in particular to create new materials using the Work Results. The Customer has the right to continue the use of material that has been lawfully produced during the term of the license.

10. The license granted to the Customer may only be transferred / sublicensed / passed on to third parties with the express prior consent of the Provider, regardless of whether this is done for consideration or free of charge.

11. The Customer is obligated to ensure that the Work Results are only used for the agreed purpose and extent and must effectively assign these obligations to third parties as necessary. The provider has the right to request information at any time regarding the extent of use of the Work Results.

12. The Customer acquires the right to use the Work Results upon full payment of the usage fee / remuneration (including incidental expenses). The Customer does not acquire any ownership or rights of usage in respect of drafts, presentations, elaborations, or computer data.

13. The Customer does not acquire any rights in and to the Work Results other than those set forth in these GTC or in any separate agreement. In particular, in the absence of a separate agreement, the Customer is not allowed to register or claim any intellectual property or other rights in or to the Work Results in its own name.

14. The Customer is liable to the Provider for any unauthorized use, in the amount double of what the reasonable fee for such use would amount to; this is without prejudice to the possibility of claiming further damages.

SERVICES AND FEES, PAYMENT OPTIONS

15. The Provider currently offers two product packages (for the period specified in the order – but in any case for a minimum duration of one (1) year – see clause 40.):

15a) “SINGLE SPHERE”: This license is granted on a non-exclusive basis and covers the worldwide use of the Provider’s Work Results in relation to one (1) “HDR sphere” (including the associated backplates, the number of which may vary depending on the sphere), as selected by the Customer. The conclusion of several “SINGLE SPHERE” licenses is possible. The “SINGLE SPHERE” license is subject to annual license fees as specified on the website / offer document.

15b) “SPHERE ONE YEAR LICENSE PACKAGE”: This license is granted on a non-exclusive basis and covers the worldwide use of the Provider’s Work Results in relation to all “HDR spheres” (including the associated backplates, the number of which may vary depending on the sphere) offered by the Provider on its website at the time of conclusion. The “SPHERE ONE YEAR LICENSE PACKAGE” license is subject to annual license fees as specified on the website / offer document.

16. The Work Results will be made available to the Customer on the Provider´s website. For identification purposes, a username and password will be provided to the Customer. Alternatively, the Work Results can be made available to the Customer using another data carrier.

17. The primary basis for calculating the Provider’s entitlement to remuneration (license fees) shall be the offer or the prices stated on the website respectively. Prices are quoted in euros (EUR) net, plus statutory value added tax. The fee is due without deduction upon invoicing, but at the latest upon the Provider’s offer of handover of the Work Results. The Provider is entitled to issue partial invoices.

18. The Provider offers various payment options, namely payment directly on the website or payment by invoice. The Customer accepts the payment methods specified and offered on the website during the order process. The Provider reserves the right to change the payment methods offered and to display this accordingly on the website. After providing the necessary data, the Customer submits a binding offer to conclude a corresponding contract by placing an electronic order (by clicking the “ORDER NOW” button) on the website. Before sending the electronic order, the Customer is given the opportunity to check the accuracy and completeness of all the information provided and to correct any input errors. Offer / acceptance are not saved.

19. The remuneration is due without deduction immediately or upon invoicing, but at the latest upon handover of the Work Results by the Provider. The Provider is authorised to issue partial invoices. In the event that the Customer is in default with the payment of the remuneration (or a part thereof), default an interest rate of twelve (12) percent (%) p.a. is hereby agreed, and the Provider is not obliged to provide further services to the Customer until any payment claims due have been settled. The Customer is not entitled to set off its own claims against remuneration claims or to withhold payments for any reason whatsoever.

20. The Provider reserves the right to adjust the respective remuneration / fees, also for future terms of the contractual relationship. The prices quoted are furthermore index-linked to the consumer price index (VPI) 2020 published by Statistik Austria, or a replacement index, with the calendar month of the conclusion of the contractual agreement between the Provider and the Customer shall be used as a basis for any adjustments.

21. Any deadlines and dates stated by the Provider for individual services are understood as being non-binding, unless a fixed deadline or date is expressly confirmed in writing.

22. The Provider shall not be liable for any delay in performance or impossibility of performance (or a part thereof) due to force majeure/other uncontrollable impediments (such as, but not limited to, strike, fire, natural disasters, flooding, epidemics/pandemics, war/terrorism, labour dispute, operational disruption, changes in regulatory or legal requirements, and official orders not attributable to business risk), delays in third-party services commissioned, or non-compliance with the Customer’s duty to cooperate.

23. The Customer shall immediately, but no later than within five (5) working days after their handover, check the Work Results for completeness, correctness and freedom from defects, and shall notify the Provider of any defects in writing if such defects occur. Otherwise, the Work Results shall be deemed approved and claims arising from warranty, damages or mistake regarding freedom from defects shall be excluded. The warranty period is six (6) months from the time of handover; the presumption pursuant to section 924 of the Austrian Civil Code (ABGB) is hereby expressly waived.

24. In the case of a legitimate and timely complaint about defects, the Customer has the right to demand repair or replacement of the service by the Provider. The Provider will remedy the defects within a reasonable period of time, whereby the Customer shall enable all measures necessary for examination and correction. The Provider is entitled to refuse to improve the service if it is impossible or associated with a disproportionate effort. In such case, the Customer shall have the right to a price reduction or (in the case of a major defect) to rescind the contract.

25. The place of performance for all services arising from the contractual relationship between the Provider and the Customer is the Provider’s place of business.

LIABILITY

26. The Provider warrants the best possible availability of the Work Results within reasonable and usual standards but does not assume any warranty, guarantee or liability for their constant correctness, completeness, a specific quality, suitability or fitness, uninterrupted and error-free availability or access, transfer, hardware, software, or network errors, delays or mistakes.

27. The Provider (as well as its officers, employees, agents or assistants) shall not be liable for material and financial damages resulting from slight negligence. Liability for gross negligence is limited to the net amount of the corresponding order. In no event shall the Provider be liable for indirect damages, consequential damages, lost profits or for hardware/software damages. In case the Customer asserts gross negligence on part of the Provider, it shall bear the burden of prove therefore.

28. Any advice given by the Provider relates exclusively to the field of “photography,” and any expert liability is limited to this area.

29. Third parties commissioned by the Customer on the customer’s account for any necessary or agreed external services related to the order shall not be deemed vicarious agents of the Provider.

30. The Customer assumes sole responsibility and liability for the accuracy, completeness, and legal admissibility (in particular, but not exclusively, according to intellectual property, competition, administrative, and criminal law provisions) of the use of the Work Results. The Provider assumes no responsibility or liability for the accuracy or completeness of the Work Results to the extent that they have been approved/released by the Customer or have been offered for review by the Provider. The Provider is also not liable for any specific outcome.

31. The Customer warrants and guarantees (pursuant to section 880a ABGB) that the information, documents and materials (including photographs, texts, models, products, samples, graphics) provided by the Customer to the Provider are completely free of third-party rights (in particular, but not exclusively, intellectual property rights, personality rights, security interests, and/or confidentiality interests), that the Customer is authorized to use them for the intended purpose, and that the services provided by the Provider, processing, and/or use do not violate any third-party rights. The Customer fully indemnifies and holds the Provider, its officers, and employees harmless in this regard.

REFERENCE COPIES, REFERENCE

32. The Customer provides the Provider with five (5) impeccable reference copies of all Work Results that may have been produced exclusively for the Customer, free of charge and without being requested. The Provider is permitted to use these copies (as well as any reproductions of them) without restriction for the purpose of self-promotion and to make them publicly accessible and available (this includes, in particular but not exclusively, their use in printed materials, on websites, and in similar media).

33. Unless otherwise agreed, the Provider is entitled to include the name/company of the Customer as well as the order (possibly together with the use of the reference copies according to clause 29.) in its reference list (regardless of the medium used) and to use and publish it.

STORAGE, RETURN

34. The Customer receives all work results in a fiduciary capacity. Until the acquisition of the license pursuant to these GTC, the Customer is not permitted to reproduce (in any way) or make accessible to third parties any part of the Work Results.

35. Draft originals and computer data must be returned or handed over to the Provider undamaged at the expense and risk of the Customer as soon as they are no longer required for the agreed use.

36. Work Results of the Provider are only made available for the agreed usage and for the duration specified in the order. When the contract ends, all work results must be deleted from the Customer’s electronic storage systems as evidenced.

37. The Provider undertakes to keep the order documents, drafts, and elaborations for a period of one (1) year from completion.

DURATION OF CONTRACT, WITHDRAWAL, TERMINATION

38. The Provider is not obligated to accept an order.

39. Offers from the Provider are subject to change and not binding.

40. Each contract is concluded for a specific duration, with a minimum term of one (1) year. Either party is entitled to terminate the contract for convenience, with a notice period of three (3) months to the end of each calendar month. Contracts may be extended, but the minimum term for such extension shall also be one (1) year.

41. After the Customer has accepted the offer, any termination of the contractual relationship, which is not due to an important reason for extraordinary termination attributable to the Provider, does not release the Customer from the obligation to pay the total fee plus the costs for incidental services and other costs incurred up to the effective date of termination.

42. Notwithstanding the forgoing, the Provider is entitled to demand compensation from the Customer for unused work capacity provided and any damages suffered.

43. For the avoidance of doubt, in the event of withdrawal or premature termination of the contractual relationship, no usage rights regarding the Work Results are granted to the Customer in any way; rather, all rights remain with the Provider or are fully returned to the provider. A separate fee for granting usage rights will not be invoiced by the Provider in such a case.

44. The Provider is entitled to terminate the contractual relationship with immediate effect for cause. This shall apply in particular, but not exclusively, if (i) the Customer violates the essential contractual obligations or other essential obligations incumbent upon it; or (ii) the Customer is more than fourteen (14) calendar days in arrears with the payment of a due claim despite the setting of a reasonable grace period; or (iii) insolvency proceedings are opened over the assets of the Customer or the opening of such proceedings is rejected due to lack of assets.

DATA STORAGE / DATA PROTECTION

45. The Provider collects personal data of Customers and/or employees of the Customer in the context of contract processing and complies with the provisions of the General Data Protection Regulation (GDPR) and applicable national data protection laws. The provisions of this section “Data Storage/Data Protection” only apply with regard to personal data of natural persons pursuant to Art 4 (1) GDPR.

46. The responsible party pursuant to Art 4 (7) GDPR is the Provider, whose details can be found in the imprint footer. The following personal data regarding the Customer (or its employees) may be collected and processed: (i) first and last name of the contact person/company, (ii) commercial register number, (iii) postal address, (iv) email address, (v) VAT identification number, (vi) bank or credit card details, (vii) telephone number.

47. The processing of personal data is primarily carried out to fulfill a contract or to carry out pre-contractual measures (Art. 6 (1) (b) GDPR). Furthermore, processing is carried out to safeguard the legitimate interests of the Provider or legitimate interests of third parties (Art. 6 (1) (f) GDPR), in particular for the purposes of debt collection, direct marketing in analog and digital form, customer retention, for the purpose of indicating an existing or previous business relationship (reference notice), statistical analysis and improvement of our service offering and its quality.

48. Personal data is only passed on to third parties if this is necessary to process the contractual relationship (e.g. to payment service providers).

49. The protection of personal data of the Customer is ensured by organizational and technical measures, such as protection against unauthorized access, impairment or loss and technical data security measures.

50. Personal data is only stored by the Provider for as long as necessary to fulfill contractual or legal obligations (Art. 6 (1) (b) GDPR) and/or debt collection (appropriate retention obligations can arise, for example, from tax law provisions – a legal basis for the storage of data also arises from Art. 6 (1) (c) GDPR in this context). If this is not longer required, this data will be deleted.

51. The Customer has the right at any time to (i) free information about its stored personal data, their origin, the processing purpose, and, if applicable, the recipient of this data (Art. 15 GDPR); (ii) demand correction, transfer, restriction of processing, blocking or deletion of personal data if they are incorrect or the basis for data processing is no longer present (Art. 16, 17, 18, 20 GDPR); (iii) object to the processing of personal data on the basis of Art. 6 (1) (f) GDPR (“safeguarding legitimate interests”) (Art. 21 GDPR); (iv) reject the use for electronic contact when personal data is collected and at every transmission free of charge. These claims are to be addressed to info@ultraspheres.at.

52. If the Customer is of the opinion that the processing of personal data violates applicable data protection laws or that the Customer’s rights under data protection law have otherwise been violated, the Customer has the right to lodge a complaint with the competent supervisory authority (according to Art. 77 GDPR).

OTHER PROVISIONS

53. These GTC as well as the contractual relationship between the Provider and the Customer are subject exclusively to Austrian law, with the exception of its conflict of laws provisions and the UN Sales Convention.

54. The exclusive place of jurisdiction for all legal disputes arising directly or indirectly from the contractual relationship shall be the court with jurisdiction at the Provider’s registered office.

55. If any provision of these GTC is unlawful, invalid or unenforceable, this shall not affect the validity of the remaining provisions. Unless the parties have agreed otherwise, an effective provision shall be deemed to have been agreed that corresponds as closely as possible to the economic purpose of the provision and the intention of the parties at the time of conclusion of this agreement.