Recitals
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WHEREAS:
(A) The agency owns an on-line database ("database") of digital, high resolution, records of photographic images ("digital images").
(B) The agency also has an unlimited right of use of all digital images accessible from the database.
(C) The agency has agreed to supply various digital images on a non-exclusive basis to the Client so as to enable the Client to create images in print, digital, media, film and television in accordance with the following terms and conditions:
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A. General |
1. Online access to the database shall be conditional on the agency and the Client signing an online access agreement and the agency supplying the Client with a password.
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2. The online access granted by the agencyshall not authorise the Client to exploit or duplicate the material on view nor to pass it on to third parties.
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3. Digital images may only be accessed by persons who have due authorisation. In order to allow the agency to control who has accessed digital images, several passwords may be applied for by the Client.
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4. Any differing terms and conditions of the Client shall only apply if the agency has agreed them in writing.
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5. Complaints about technical defects or other defects in the digital images must be made within 24 hours of downloading and as soon as reasonably practicable on discovery in the case of hidden defects. After making a complaint within the time limit the Client shall be entitled to download the defective digital images again without a new charge for the downloading. For the avoidance of doubt the agency shall not accept any liability for any damage and/or loss incurred by the Client as a result of poor technical quality of the digital images save where the poor quality arises as a result of the agency's willful intent or gross negligence.
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6. Within14 days from the date of commencement of use of the digital images the Client must indicate the type use to which they are to be put, the duration and scope of the use and the area of distribution. Thereafter the agency shall either agree the proposed use or otherwise authorise an alternative use. If the details provided by the Client do not correspond to the use to which the images are in fact put or if their actual use does not correspond to the details provided by the Client, it shall be deemed that permission for use has not been given and the Client shall indemnify the agency in respect of any third-party claims for loss or damage arising from that unauthorised use including any legal costs properly incurred by the agency in defending any third party claim.
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7. The intellectual property rights in the digital images shall at all times remain the property ofthe agency (or, where relevant, of the agencies and/or photographers whom the agency represents). The Client shall acquire only a non-exclusive, non-transferable licence to use the copyright in the digital images for the period of time, use and area of use as authorised by the agency.
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8. Subject to the provisions of Clause 6.A above and as from the time that the digital images are downloaded from the database the Client may publish the digital images for a period of 3 months pursuant to these terms and conditions without obtaining prior permission. If they are published after this time without the express permission of the agency the Client shall indemnify the agency in respect of all loss or damage incurred as a result of the unauthorised publication [(including any legal costs properly incurred by the agency in defending any third party claim)].. After the expiry of this period of time the digital images must be deleted from all the Client's digital and electronic storage media, both online and offline, together with all copies that have had to be made for technical processing, that is unless a longer period of time for storage has been agreed in writing by the agency. All representations in analogue form of the digital images encoded in the data records on any media (paper printouts, thermo-transfer printouts, exposed positive or negative films etc. or any technique yet to be invented) must also be destroyed after the expiry of this period. They may not be archived.
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9. There shall be a charge of € 0.-- for each digital image downloaded from the database unless the agency is responsible for the dispatch, when the charge shall be € 5.-- It shall not be possible to set off this charge against any exploitation fees owed by the Client to the agency. The Client shall acquire neither any licence to use any intellectual property nor any rights of ownership by paying the charges for downloading/dispatch. The agency reserves the right to review the charges for downloading and digital dispatch at any time and to adjust them as appears just and fair.
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10. In principle low resolution images ("previews" or "screenshots") may not be published or otherwise reproduced by the Client. Along with thumbnails their main purpose is to provide a further selection aid while the Client is online.
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11. Paying damages and/or a contractual penalty under these terms and conditions shall not mean that the Client automatically acquires any intellectual property rights nor any exploitation rights in the digital images.
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12. Any use by the Client of any digital images shall be otherwise than for commercial gain unless agreed by the agency.
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B. Fees |
1. Any use of the agency's digital images shall attract a fee. This shall also be the case if a digital image is used as a model for drawings, caricatures, adjusted photos or for layout purposes (dummies) or presentations to customers.
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2. The fees shall be based on the prices set out in our price lists for the use specified by the Client of which we are to be notified in accordance with Clause 6.A above. If the Client fails to supply such notification the agency shall be entitled to charge the highest fee in the corresponding price list for each image downloaded. All details of fees in offers, price lists and other documents are always quoted net without the addition of value added tax. ("VAT") VAT will however be charged in addition to all fees.
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3. For certain digital images (which are specially marked in the database) there shall be a surcharge payable in addition to the basic fee.
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4. The fees apply only for one time use only on the terms agreed pursuant to Clause 6.A above. Any further use, including, without limitation, use in brochures, advertising or any repeat use, shall attract a new fee and the prior consent of the agency must be obtained.
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5. Exclusive rights or freeze periods must be agreed on separately.
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6. The agency shall issue an invoice for its fees, even if the images have not yet been published or used in another way.
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7. If the images have not been published or used in another way as intended, there shall be no reimbursement of the paid fee. On paying the fee the Client shall be granted the right to use the images in the form set out in clause A 6.
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8. Fees must always be paid within 30 days of issue and should indicate the Client's account number and the number of the invoice.
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C. Restrictions on use, liability, exploitation rights and copyrights |
1. In principle only a one-time right of use in respect of the photographic copyright shall be licensed . This particularly applies to digital images which, in terms of their contents, are subject to further intellectual property rights (e.g. works of arts or performing arts) it shall be duty of the Client to obtain all necessary assignments and/or licenses of copyright or other intellectual property rights and approvals for publication from collectors, museums etc. The agency shall only provide the copyright in the digital images for the purposes of this Agreement.
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2. It shall not be permitted to edit any of the digital images, such as by marking it, making photos of it, photo-composing or montages with mechanical or electronic aids. Any exceptions must be permitted in writing by the Agency. Any use wich is foreign to the nature of work and forgeries in respect of images or words or any use which may disparage the persons depicted are not permitted and shall render the other Contracting Party liable for damages.
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3. Otherwise than as agreed pursuant to this Agreement, it is not permitted to pass on the images in electronic, digital or analogue form. Nor is it permitted to pass on reprinting rights to third parties.
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4. The Client is obliged to observe the journalistic principles of the German Press Council (Press Code). The Client shall assume all legal responsibility for any authorised use of the digital images. The agency shall assume no liability for any intellectual property right infringement due to a use which is contrary to this Agreement or which distorts the meaning in respect of the image or the copy. If such rights are infringed the Client shall be liable for damages towards any third parties. The Client shall indemnify the agency against all third-party claims in connection with its publication of any digital image.
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5. The agency shall not accept any liability for any inaccuracy of the contents of the captions accompanying the digital images save where such inaccuracy arises due to the agency's wilful intent or gross negligence.
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6. The agency explicitly reserves the right to licence or assign secondary rights to any third party and does not accept clauses which state that the acceptance of the fee assumes the Client acquires a non-exclusive right.
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7. The agency shall assume no liability for the technical accuracy and completeness of the data comprising the digital image. No liability shall be assumed for any loss or damage incurred by the Client as a result of technical faults, restrictions in business operations and interruptions to business save where such loss or damage arises due to the agency's wilful intent or gross negligence. The agency may alter its hours of business at any time due to technical adjustments or other circumstances. The Client shall have no claim to the images being constantly available.
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D. Copyright / author's copy |
1. With reference to article 13 of German Copyright Law the agency explicitly requires a reference to the agency or agencies and the author in the form enclosed in the digital image (photographer / [agency] / [agency]) and in a form that leaves no doubt as regards the classification of the photo in question. General references shall only be adequate in this respect if they also allow the clear classification of the image in question.
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2. Paragraph 1 shall also apply in respect of advertising, inserts in television programmes and films or other media in the absence of any special and explicit agreement.
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3. In as far as nothing particular has been set out above, every type of use shall be subject to the provisions of the German Copyright Law.
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4. As from the commencement of this Agreement the other Contracting Party undertakes to arrange for a free subscription for the agency for each publication looked after by the editorial board so that the dispatch of authors' copies does not have to be arranged by the Contracting Party.
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E. Contractual penalty / lump-sum damages |
1. In the case of unauthorised use, distortion or the passing on of the agency's digital images in electronic, digital or analogue form, the unauthorised transfer of intellectual property rights to third parties and the unauthorised reproduction of any of the digital images or analogue representations thereof by the Client for whatever reason shall attract a contractual penalty amounting to five times the usual fee. Such a fee would not exclude the agency's right to pursue the Client for further damages and shall not release the Client from the obligation to pay the fee.
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2. A higher fee shall be payable for images which are published without a reference to the agency and/or the author or with an incorrect reference. It shall be increased by 100 % of the publication fee if one part of the reference to the agency and/or the author is missing or incorrect and by 200 % if two parts are missing or incorrect, and so on.
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F. Terms of payment / place of jurisdiction / miscellaneous |
1. For both Parties the sole place of jurisdiction and performance shall be Hamburg in as far as this is permissible by law.
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2. This Agreement is governed by German law, even if deliveries are made abroad.
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3. Should any provision of these Standard Terms and Conditions of Delivery and Business be void, this shall not affect the validity of the remaining provisions.
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(AGB / Valid as at 20.08.2019)
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