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General Terms and Conditions of Picture Press Bild- und Textagentur GmbH (PICTURE PRESS)
1.1 "Materials" shall mean
••• all manner of photographic materials and text, unless photographic material only is specified hereinafter
••• materials supplied in analogous and digital form, as long as the form is not expressly specified hereinafter.
1.2 The "customer" shall mean every business partner, who requests materials from PICTURE PRESS, downloads materials from the PICTURE PRESS web site www.picturepress.de or is entitled by agreement with PICTURE PRESS to use the materials.
1.3 When ordering the materials the customer must state the nature and scope of the planned usage of the materials precisely and in the case of advertising also the product. The use of materials is only permitted after PICTURE PRESS has consented to the planned usage and the purpose.
Low resolution material from the PICTURE PRESS web site may under no circumstances be used for publication and dissemination. A digitalisation of analogous materials and the transfer of digital materials by way of data transfer or on data carriers shall only be permitted, to the extent that this is necessary for the exploitation of the rights of use granted to the customers.
1.4 Should the customer intend to deviate from the purpose stated, this shall require the prior written consent of PICTURE PRESS.
1.5 The materials may not be altered or reworked in any manner without the prior written consent of PICTURE PRESS.
2. TERMS OF USAGE; RETURN; DUTY TO GIVE INFORMATION
2.1 The materials are provided to the customer only on a rental basis and must be returned or erased within the term mentioned in the delivery note. Should the customer during the term mentioned on the delivery note,
••• inform PICTURE PRESS that he intends to use the materials supplied on approval or
••• has acquired rights of use to the materials
he has to return the materials within 90 days (from the date of the delivery note) or to erase it, irrespective of whether he has used it or not.
2.2 If the materials are not returned within the terms mentioned in 2.1, a further charge of EURO 1,- per day per photo has to be paid to PICTURE PRESS, which charge will be offset against any possible damages because of loss of the photographic materials.
2.3 The customer shall be obliged to give information to PICTURE PRESS at PICTURE PRESS request whether and to what extent he has reproduced, stored, copied or otherwise used the photographic materials supplied.
3. RIGHTS GRANTED
3.1 The materials supplied shall always remain the property of PICTURE PRESS. By payment of any compensation to PICTURE PRESS the customers shall not acquire any rights to the materials.
3.2 Unless the customer has obtained prior written consent from PICTURE PRESS the materials may only be used for a single publication and for the use and purpose agreed.
3.3 Reproduction, electronic or other storage of the materials for archival purposes shall not be permitted.
3.4 The transfer of the materials or the assignment of any rights in the materials to any third party is not permitted.
3.5 The customer must acquire any rights which might be necessary for the publication of works of art or architecture depicted in any photo.
3.6 The customer must acquire the prior consent for the publication of pictures of persons depicted in any image, unless PICTURE PRESS shall have expressly made written assurances that the consent of the person depicted has been obtained.
3.7 PICTURE PRESS makes no warranty that the use of the materials will not violate the rights of the depicted persons to their own image or the rights of third parties, such as the rights of personality, rights of exploitation, etc.
If any third party should make a legal claim against the customer in connection with the use of the materials, the customer
must promptly notify PICTURE PRESS to agree on further legal measures to be taken.
4. OBLIGATIONS OF THE CUSTOMER, INDEMNIFICATION
4.1 The customer is obliged to observe the principles of publication of the German Press Council (Press Codex) and the rights of third parties (e.g. personality rights, right to enterprise, copyright laws).
The customer may also not use the materials in a way which could lead to an alteration of the sense of the materials or to a violation of the contract.
4.2 Should the customer violate the aforementioned obligation in particular by negligence of the provisions 1.4, 1.5, 3.2 to 3.6 thereby causing third party claims against PICTURE PRESS, the customer undertakes to indemnify PICTURE PRESS against each and every claim and to take over all costs ensuing to PICTURE PRESS as a consequence of such claims.
PICTURE PRESS must be informed of apparent flaws in the materials immediately on receipt by telephone or in writing by customers using the materials for business purposes, by any other customer within 14 days of receipt.
Hidden defects have to be claimed by commercial users immediately on discovery and by other customers within 14 days of discovery.
6. WARRANTY, LIABILITY, STATUTE OF LIMITATION
6.1 PICTURE PRESS undertakes - unless assured pursuant to 3.6 herein above - no warranty, that the rights to ones own image of persons depicted, other rights of third parties, such as personality rights, rights to enterprise etc. will not be violated by the use of the materials.
Should third parties raise claims against the customers in connection with the use of the materials the customer shall be obliged to contact PICTURE PRESS immediately and to coordinate the legal steps.
Should flaws arise in the case of the delivery of digital materials the customer shall have the right to download anew. If the flaws cannot be removed the customer shall be entitled at his choice to withdraw from the contract or
to reduce the remuneration. Claims for damages against PICTURE PRESS are excluded in such a case, except for intention or gross negligence.
6.2 In other cases PICTURE PRESS shall only be liable in case of slight negligence, should an essential contractual obligation be violated. In all cases of liability the liability shall be limited to the typical predictable damages except for wilful causation.
6.3 The limitation of liability pursuant to 6.2 and 6.3 shall not be applicable to claims based on the law of product liability nor to claims based on an injury of life, body and/or health.
6.4 All claims against PICTURE PRESS based on a violation of any contractual obligation become statute-barred within one year of the beginning of the statutory limitation of action except for wilful causation.
7. LIABILITY OF THE CUSTOMER
7.1 Loss of and damage to the materials
7.1.1 The customer is liable for any injury to the analogous materials until returned to PICTURE PRESS. This also applies if PICTURE PRESS forwarded the materials to a third party at the request of the customer.
7.1.2 If a photo is damaged so that it can no longer be used or is lost within the control and scope of risk of a customer the customer shall be responsible for damages in the amount of EURO 1500,- per lost or damaged photo. However the customer is entitled to prove in any single case that the damage to PICTURE PRESS is lower.
7.1.3 In case of loss of or damage to other kinds of pictorial artwork the customer shall be obliged to compensate for the costs of restoration.
7.1.4 Should a slide be taken out of its frame or the lettering on the frame be made illegible, the customer shall restore it to its original condition. If the customer does not fulfil this obligation he shall bear the costs of the restoration.
7.1.5 In case of loss of and/or damage of the materials supplied PICTURE PRESS reserves the right to assert additional claims.
7.2 In case of unauthorised
••• use, adaptation, recast or transfer of the materials to third parties in any form
••• granting of rights to third parties
••• production of copies of digital data records or analogous representations of the contents of the pictures, which are contained in the data records for archive purpose of the customer and their transfer to third parties
the customer undertakes to indemnify PICTURE PRESS from all third party claims arising therefrom. In these cases and in the case that the customer fails to eliminate data despite his contractual obligation, PICTURE PRESS shall have a claim to receive a penalty to be paid by the customer in the amount of fivefold of the agreed remuneration, or if an agreement was not concluded, in the amount of fivefold of the usual remuneration, how ever in any case a minimum of 500,- EURO per photo and individual case.
PICTURE PRESS reserves the right to assert additional claims in any of these cases.
8. COPYRIGHT NOTICE; COMPLEMENTARY COPIES
8.1 PICTURE PRESS expressly requires a copyright notice according to § 13 of the German Copyright law in such a manner that there can be no doubt as to the identity of the copyright holder, the agency and their relationship to the particular image involved. The customer shall cause the following copyright notice to appear on the photograph or directly next to the photograph, the name of the photographer and/or of the author/ and of PICTURE PRESS and if requested by PICTURE PRESS the name of the media of first publication.
Any exceptions (for example, if used for commercial purposes) require the prior written consent of PICTURE PRESS.
8.2 When carrying out the digital compilation the customer is obliged to combine electronically the name of the photographer and of PICTURE PRESS with the data of the materials. The customer has to safeguard that this combination will persist after any transfer of data and of the data of the materials to other data carriers, during the rendering on a screen as well as during every public communication and that at any time the photographer can be recognised as creator of the photos and PICTURE PRESS as his agency.
8.3 Should no proper copyright notice in accordance with 8.1 be provided, the customer undertakes
••• to pay to PICTURE PRESS a surcharge equal to the amount of the agreed fee and
••• to indemnify PICTURE PRESS to the extent stated in 4.2 from all third party claims arising therefrom.
8.4 The customer must provide PICTURE PRESS with two complete specimen copies of each production within two weeks of publication, without cost to or demand by PICTURE PRESS.
9. DIGITAL IMAGE PROCESSING
The customer is obliged to eliminate the digital data produced by him or transferred by PICTURE PRESS to him immediately after the end of the production of the agreed media.
10.1 Every use of the materials shall be subject to payment of a fee, including without limitation, when used in working documents such as presentations, pilot issues, drawings, cartoons, or mock-up or the use of any aspect of a photo as a component of a new picture, whether by photomontage, photo composition, electronic composition or similar technical means.
10.2 The fee must be agreed prior to use. The amount of the fee shall depend on the agreed manner and the purpose of usage. Every use over and above that agreed upon shall require a new fee agreement. Should no agreement on the fee exist the usual fee charged by PICTURE PRESS for the kind of use taken place has to be paid by the customer.
10.3 All fees listed in offers, price lists and all other documents of PICTURE PRESS are net fees without value added tax and the levy for the social security for self-employed artists.
11. CHARGES, COSTS AND POSTAGE
11.1 Every delivery of materials shall be charged to the customer. The fees shall be determined according to the manner and extent of the work required of PICTURE PRESS. The minimum fee/charge is EURO 30,-.
Costs for scans and the electronic transfer of pictures will be charged as specifically agreed.
11.2 Extensive research work will be invoiced separately.
11.3 Postage, air freight and courier charges shall be borne by the customer. The same shall apply for photographic and reproduction costs.
11.4 Fee and cost invoices have to be paid together with the applicable value added tax and the levy for the social security for self-employed artists within one week of receipt of the invoice without any deduction.
12. APPLICABLE SCOPE, PARTIAL INVALIDITY, VENUE, APPLICABLE LAW
12.1 For all deliveries of materials these General Terms and Conditions of PICTURE PRESS shall be applicable. Contradictory or deviating terms and conditions of the customer will not be accepted in any case, even if there is no express contradiction by PICTURE PRESS in individual cases.
12.2 The invalidity or unenforceability of any particular provision hereof shall not affect the validity of the remainder hereof.
12.3 The place of performance is Hamburg. Hamburg shall be the place of venue in the case of commercial business dealings.
12.4 In the case of deliveries to non-commercial customers who are not residents of Germany, Hamburg shall likewise be the place of venue of any dispute.
12.5 The laws of the Federal Republic of Germany shall be applicable.