Terms of service

Effective from October 1, 2020

Vendor:
Michele Agostinis (hereafter „Vendor“)
Rechte Wienzeile 147
1050 Wien, Austria
VAT No: ATU68888527
Tel: +43 (0) 660 48 93 712
E-Mail: info@micheleagostinis.com

1 Applicability

These General Terms and Conditions ("GTC") apply to all contracts and agreements with the Vendor regarding the purchase or rental of prints, pictures, or other forms of images distributed by the Vendor. These GTC does not apply to photography services as offered under https://www.micheleagostinis.com, for which the general terms and conditions published there apply.

The deliveries, services and offers of the Vendor, both via the web shop https://shop.micheleagostinis.com/ and the premises, therefore in particular the sale and rental, are exclusively based on these GTC; the Vendor does not recognise any terms and conditions of the customer which conflict with or deviate from these GTC, unless he has expressly agreed to their applicability. The Vendor's actions in fulfilling the contract shall not be deemed to be consent to contractual conditions deviating from these GTC.

These GTC are available at the business premises and can be accessed under https://shop.micheleagostinis.com/policies/terms-of-service.

2 Orders and conclusion of contracts in the web shop

The presentation of the goods in the web shop does not constitute a binding offer by the Vendor to conclude a purchase or rental contract. The customer is only requested to submit an offer by placing an order.

By submitting an order in the web shop at the end of the ordering process, the customer submits a binding offer, aimed at the conclusion of a purchase or rental contract for the goods contained in the shopping basket. By sending the order the customer acknowledges these GTC as the only conditions relevant for the legal relationship with the Vendor.

The Vendor shall confirm receipt of the order by sending a confirmation e-mail. This confirmation does not yet represent the acceptance of the customer’s contract offer by the Vendor. It merely serves to inform the customer that the order has been received by the Vendor.

The declaration of acceptance of the contract offer is made by the delivery of the ordered goods, another implied action or by an express declaration of acceptance.

2.1 Consumers' right of Withdrawal pursuant to § 11 FAGG

A customer, who is a consumer within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, "KSchG"), may withdraw from a contract concluded outside the business premises of the Vendor or from a distance selling contract - if no legal exception applies - within fourteen days. The details on the exercise of the right of withdrawal are available under https://shop.micheleagostinis.com/policies/refund-policy.

The withdrawal period is fourteen calendar days. In the case of contracts for the delivery of goods, it begins on the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods. In the case of multiple goods ordered by the consumer in one order and delivered separately, it begins from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good.

It is sufficient if the customer has sent the declaration of withdrawal before the withdrawal period has expired.

The declaration of withdrawal can, but does not have to be, made electronically by using the model withdrawal form, available under https://shop.micheleagostinis.com/policies/refund-policy.

The right of withdrawal does not apply according to § 18 para 1 no 3 of the Austrian Distance Selling Act (Fern- und Auswärtsgeschäfte-Gesetz, "FAGG") for supply of goods made to the consumer’s specifications or which are clearly personalised. The right of withdrawal is therefore excluded in particular in the case of special dimensions that are produced at the customer's explicit request. Special dimensions are all dimensions that are not offered by default in the web shop.

If the customer withdraws from the contract, then

• the Vendor shall reimburse all payments made by the customer, including delivery costs (with the exception of additional costs resulting from the customer's choice of a different delivery method than the cheapest standard delivery offered by the Vendor), and
• the customer shall return the received goods within 14 days from sending the withdrawal notification and pay the Vendor, at its request, an appropriate fee for the use of the goods, including compensation for any associated reduction in the fair value of the goods.

The customer shall bear the direct costs of the return shipment himself.

After receipt of the returned goods by the Vendor and their examination, the customer will be informed about the receipt and whether and in what amount a refund is due.

The customer shall pay the Vendor compensation for the reduction in value of the goods if this reduction in value is caused by handling of the goods in a manner not required for examining the condition, properties and functioning of the goods. The amount to be refunded to the customer can be reduced by this reduction in value.

In the absence of an individual agreement the same means of payment that the customer used for the original transaction will be used for the refund.

2.2 Prices, shipping costs, delivery

The prices are listed in the presentation of the individual items. All prices quoted by the Vendor are, unless otherwise expressly stated, inclusive of VAT (where applicable) and shipping costs. In general, no VAT will be charged due to the VAT-exemption under the small business taxation legislation.

If not agreed otherwise, in general all pictures subject to a purchase are delivered without frames. Pictures subject to a rental contract are rented with frames.

Delivery is made at the discretion of the Vendor by post, parcel service, freight forwarder or courier and is usually arranged approx. within 7 days from the date of sending the confirmation email of receipt of the order in accordance with point 2. Alternatively, the goods can also be collected at the business premises of the Vendor after prior notification of the customer.

2.3 Payment conditions

Unless another method of payment has been agreed upon in detail, payment shall be made in advance using the payment options offered.

3 Special conditions regarding rental contracts

Notwithstanding the remainder of these terms and conditions, the following applies to the rental of pictures:

3.1 General

The possibility to rent pictures is limited to Austria.

With the acceptance of the customer's offer according to section 2. of these GTC a rental agreement for the selected picture(s) in the dimension 50x70cm ("Rental Object") is concluded between the Vendor and the customer.

The term of the contract is 6 months or one year. The rental term begins at the time of delivery to the consumer or a third party other than the carrier and indicated by the consumer (exception: default of acceptance, for details see point 5. below). The rental agreement is automatically renewed for a further year if it is not terminated by letter or e-mail with one months' notice to the end of the contract term. If the contract is not terminated in due time, the customer will be charged the invoice amount for the next annual rent.

3.2 Rental fee

For the rental of pictures, the prices stated or negotiated in detail apply. These prices are understood as annual rent (or 6 months rent) and include VAT, shipping costs, and frames. The payment in course of submitting the initial rental order via the web shop serves as the annual rent (or 6 months rent) for the first year (6 months).

If the rental contract is not terminated according to point 3.1. above, the customer will be charged the invoice amount for the next annual rent (or 6 months rent) by individual invoice. Invoices will be sent to the last e-mail or physical address provided by the customer.

3.3 Change of pictures

For an additional fee of EUR 100.00 the customer has the option of replacing the Rental Object for an alternate picture offered by the Vendor and of the same size. An exchange of the Rental Object does not affect the duration of the contract or the other provisions of the rental agreement.

3.4 Liability and exhibition

The customer bears the risk of damage and destruction of the Rental Object from the time of delivery until the time of return. The customer must treat the Rental Object with proper care.

The rental object may only be hanged/exhibited in private and business premises of the customer within Austria. The exhibition location must be provided to the Vendor. If the customer changes the exhibition location of the Rental Object, e.g. due to a move, he must inform the Vendor immediately. The passing on of the rental object to third parties or its transfer to another country is not permitted.

3.5 Delivery and return

The Rental Object will be delivered adequately packaged and must be returned in the original packaging or equivalent at the customer’s expense.

Upon delivery, the customer confirms receipt by signing the delivery note or an acknowledgement of receipt. With his signature, the customer confirms that he has inspected the Rental Object and accepted it in a faultless condition. Possible defects can be noted and considered upon return. Later complaints will not be considered. The Vendor reserves the right to take a photo /copy of the ID of the customer or the transferee prior to or at handover.

The return of the Rental Object shall be effected at the latest on the last day of the contract period and, unless otherwise agreed in detail, by shipping or personal return to the above-mentioned business address. If the goods are not returned in time, the Vendor is entitled to charge the aliquot rental price for the duration of the delay.

The Rental Object must be returned in the condition in which it was received. With the exception of normal wear and tear or signs of use, the customer shall reimburse the Vendor for all costs of repair or restoration of the Rental Object. If restoration is not possible, the customer shall reimburse the Vendor for the purchase price (including the frame if damaged as well), reduced by one year’s rent.

3.6 Extraordinary termination

The Vendor is entitled to terminate the rental contract prematurely and without notice if the customer treats the rental object contrary to these provisions, in particular if it is treated in a careless manner. In this case, the Rental Object is to be returned within two weeks after receipt of the termination notice. A refund of the aliquot annual rent is excluded in such a case.

Ordinary termination during the contract period is excluded.

3.7 Damage and loss

The customer must inform the Vendor immediately in all cases of damage, loss, destruction, or seizure of the Rental Object. In the event of theft or willful damage, the customer must also report the theft to the police and provide the Vendor with a copy of the report. The customer shall support the Vendor in all measures to recover the Rental Object or compensate for the damage, also in dealing with insurance companies and authorities. 

4 Default of payment

If the customer is in default of payment, the Vendor is entitled, at his discretion, to either demand compensation for the damage actually incurred or interest on arrears at the statutory rate. For consumers this is 4% p.a., for entrepreneurs 9.2% p.a. above the base rate.

In the event of default of payment, the customer undertakes to reimburse the Vendor for any reminder and collection charges incurred by the Vendor to the extent that these are necessary for appropriate legal prosecution. For entrepreneurs this in any case includes a lump sum of EUR 40,- as compensation for collection costs according to § 458 UGB. The assertion of further rights and claims remains unaffected.

5 Default of acceptance

If the customer has not accepted the goods within three weeks of notification of availability for collection or as agreed (default of acceptance), the Vendor is entitled, after unsuccessful setting of a grace period, either to store the goods on his premises, for which the Vendor may charge a storage fee of 0.1% of the gross invoice amount per commenced calendar day, or to store them at the expense and risk of the customer with an authorised professional. At the same time, the Vendor is entitled to either insist on fulfilment of the contract or, after setting a reasonable period of grace of at least three weeks, to withdraw from the contract and to use the goods otherwise.

In the event of default of acceptance of rental contracts, the rental period shall begin three weeks after notification of availability for collection or after the first attempt of delivery.

6 Damages and warranty

All claims for damages are excluded in cases of slight negligence. This does not apply to personal injury. The existence of slight or gross negligence must be proven by the injured party unless it is a consumer contract. The provisions on damages contained in these GTC or otherwise agreed upon shall also apply if the claim for damages is asserted in addition to or instead of a warranty claim.

To warranty claims the statutory provisions shall apply. Deviations in colour or contrast between the presentation on the website or catalogue and the delivered pictures do not constitute a defect.

7 Copyright

The copyright of the Vendor is not affected in any way, neither by sale nor by rental.

In general, all forms of reproduction of purchased or rented objects, including copies and photographs, are prohibited. Exceptions to this rule are contextual shots in which the purchased or rented picture is taken as part of the room or during events. Business customers have the right to exhibit purchased or rented objects in their business premises.

With the purchase of a picture, the customer shall acquire the right to a printed copy of the photograph and ownership of this print, but no further rights of use or (commercial) exploitation. In particular, the customer is prohibited from all forms of duplication, editing, renting or public presentation as defined by the Austrian Copyright Act (Urheberrechtsgesetz, "UrhG"). The public exhibition of purchased pictures, with the exception of the above-mentioned permanent exhibition on the business premises, requires the express consent of the Vendor. The customer is entitled to resell the purchased picture.

By renting a picture, the customer acquires exclusively the right to temporary possession of the Rental Object for the duration of the rental period, but no further rights of use or (commercial) exploitation. In particular, the customer is prohibited from all forms of duplication, editing, renting or public presentation as defined by the UrhG. The public exhibition of rented pictures, with the exception of the above-mentioned permanent exhibition in the business premises, requires the express consent of the Vendor. The customer is not entitled to sell or sublet the Rental Object. 

8 Retention of title

All goods are sold or delivered by the Vendor under reservation of title and remain his property until full payment has been made. The assertion of the retention of title shall only constitute a withdrawal from the contract if this is expressly declared. In the event that the goods are taken back, the Vendor is entitled to charge any transport and handling costs incurred. In the event of access by third parties to the goods subject to retention of title - in particular through seizure - the customer undertakes to draw attention to the Vendor's right of ownership and to inform the Vendor immediately. If the customer is a consumer or not an entrepreneur whose regular business operations include trading with the goods purchased from the Vendor, he may not dispose of the goods subject to retention of title until the outstanding purchase price has been paid in full, and in particular may not sell, pledge, give away or rent them. The customer bears the full risk for the goods subject to retention of title, in particular for the risk of destruction, loss or impairment.

9 Data processing and contact details

The Vendor shall comply with the provisions of the Austrian Data Protection Act (Datenschutzgesetz, “DSG”), the General Data Protection Regulation (“GDPR”) and any other statutory confidentiality obligations.

Detailed information on the data processing of the Vendor is available in the Privacy Policy under https://shop.micheleagostinis.com/policies/privacy-policy.

The customer is obliged to notify the Vendor immediately of any changes to his address or contact details, in particular his e-mail address, as long as the legal transaction is not completely fulfilled by both parties. If the notification is omitted, declarations shall also be deemed received if they are sent to the last known (e-mail) address.

10 Consent to receive marketing messages

The customer agrees to receive messages (by e-mail, fax, SMS or in other electronic form) from the Vendor - or from companies commissioned by the Vendor for this purpose - within the meaning of § 107 of the Austrian Telecommunications Act 2003 (Telekommunikationsgesetz 2003, “TKG”) for advertising purposes. This consent can be revoked by the customer at any time using the link contained in each message or by e-mail to info@micheleagostinis.com.

11 Place of fulfilment, contractual language, applicable law and place of
jurisdiction

Place of fulfilment is the domicile of the Vendor.

The contract language is English.

The contracting parties agree on Austrian jurisdiction. If the contract is not a consumer transaction, the court with jurisdiction at the Vendor's registered office shall have exclusive local jurisdiction to decide all disputes arising from this contract.

This contract shall be governed by Austrian substantive law to the exclusion of the rules of conflict of laws and the UN Convention on Contracts for the International Sale of Goods. In dealings with a consumer, this choice of law shall only apply insofar as it does not restrict any mandatory legal provisions of the state in which the consumer has his residence or habitual domicile.

12 Final provisions

Should any provision of this contract be or become legally ineffective, invalid and/or void in the course of its duration, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the contractual partners undertake to replace the legally ineffective, invalid and/or void (which has become legally ineffective, invalid and/or void) provision by a provision which is legally effective and valid and which corresponds in its economic effect to the replaced provision - as far as possible and legally permissible.

All declarations of a legally binding nature on the basis of this contract must be made in writing, whereas this can be fulfilled by letter or e-mail to the address of the other contracting party last notified in writing. If a declaration is sent to the address last notified in writing, it shall be deemed to have been received by the respective contract partner.

Subsidiary agreements or amendments to these GTC must be agreed in writing, as must the waiver of the written form requirement.

The assignment of individual rights and obligations from these GTCs by the customer is only permitted with the express written consent of the Vendor.