Terms and Conditions of Business
1. Application of the Terms and Conditions
The production of images and the granting of licences in respect of images shall take place exclusively in accordance with the following Terms and Conditions.
These Terms and Conditions apply to all future production and licence agreements unless differing regulations have been specifically agreed.
Any Terms or Conditions of the contractor which differ from the following Terms and Conditions will not be recognised. Any such differing Terms or Conditions will
not form part of the Agreement notwithstanding that the imagery creator has not expressly objected to them.
2. Agreements for Production
Price quotations provided by the imagery creator shall not be binding. Price increases need not be notified by the imagery creator unless the total original price
quoted is expected to be exceeded by more than 15 %.
The contractor may only provide the imagery creator with such objects and master items as he is authorised to use and which are not encumbered by third party
rights. The contractor shall exempt the imagery creator from claims for compensation made by third parties as a result of violation of this duty.
In the event that fulfilment of the agreement requires the services of a third party to be called upon or an agreement to be entered into with a third party, then the
imagery creator is authorised to enter into the relevant commitments in the name of and at the expense of the contractor.
The imagery creator shall select the images that he/she will present to the contractor for acceptance once production is complete. Licences for use will only be
granted for images which the contractor accepts in accordance with this Agreement.
All notices of defects must be given in writing and must be received by the imagery creator no later than two weeks following the date on which the images were
delivered. Once this period has elapsed all images shall be deemed to have been accepted free from defects and in accordance with the Agreement.
3. Payment for Production and Incidental Costs
In the event that the estimated period of time required to document the images is substantially exceeded for reasons which are not the fault of the imagery creator,
then any one-off fee agreed shall be increased. In the event that payment has been agreed by the hour, the imagery creator shall also receive the agreed hourly
or daily rate for the period of time by which the documentation time is increased.
The contractor must, in addition to fees owed, refund all incidental costs incurred by the imagery creator in connection with contractual fulfilment (e.g. the cost of
filming materials, lab fees, models, travel etc.). These incidental costs shall be refunded as soon as they are incurred by the photographer.
The production fee shall be due when the images are delivered. In the event that an imagery production is delivered in stages, the relevant part-fee is due when
that part is delivered. In the event that fulfilment of the agreement takes place over a longer period of time, the imagery creator is entitled to demand part payment
for the work done so far.
Rights of use which are to be assigned shall not be obtained by the contractor until full payment of fees and all incidental costs has been made.
4. Requests for Archived Images
Images requested by the contractor from the imagery creator’s archives shall only be made available for viewing and selection for the period of one month from the
date of the delivery note. In the event that no licence agreement is concluded within this selection period, then the images are to be returned to the imagery creator
on expiry of this period.
Rights of use are not automatically assigned when the images are left with the contractor for viewing and selection. Use of any kind must be authorised in writing
in advance by the imagery creator.
All use of images as masters for sketches or for layout purposes, as well as any presentation to clients, constitutes use for which fees are payable.
The imagery creator may charge a processing fee for collating images for selection, which is calculated according to the type and amount of effort used and which
will amount to at least
€ 30.00. Postage costs (e.g. for packaging and postal charges) including expenses incurred for special means of dispatch (e.g. taxi, courier
services) are to be reimbursed by the contractor.
On expiry of the selection period (see clause 4.1.), and also when the date for returning images used by the contractor is exceeded, the contractor must pay the
imagery creator a daily blockage fee of
€ 1.25 in addition to all other fees and expenses, unless the period is exceeded for reasons which are not the fault of the
contractor or some other written agreement was reached prior to expiry of this period.
5. Rights of Use
The contractor shall only acquire rights of use to the images within the scope determined by this Agreement. Rights of ownership shall not be assigned.
Irrespective of the scope of rights of use agreed in each individual case, the imagery creator shall continue to be entitled to use the images within the scope of
advertising him or herself.
The assignment of or granting entitlement to use of such rights to third parties, and this includes other editors of a publishing company, must be authorised in
writing by the imagery creator.
As a general rule an image may only be used in its original form. Any alteration or re-arrangement (e.g. photo montages, photo-technical distortion, colouration) or
variation in the mode of reproduction (e.g. publishing excerpts) must be authorised in writing in advance by the imagery creator. This does not include the removal
of unwanted blurring or colour defects through electronic retouching.
The name of the imagery creator as author must appear on all published images.
6. Digital Image Processing
Digitalising traditional images and circulating digital images by means of long distance data transmission or on data carriers is only permissible provided that the
exercise of the rights of use granted necessitates this kind of duplication and distribution.
Image data may only be digitally archived for the contractor’s own use and only for the duration of the rights of use. Saving image data in online databases or any
other digital archives which are accessible by third parties requires express agreement between imagery creator and contractor.
If images are digitally recorded, the imagery creator’s name must be electronically linked to the image data. Further, the contractor must ensure by means of
suitable technical arrangements that this link remains intact during every data transfer, every transfer of image data onto other data carriers, every reproduction on
a screen and every public reproduction, and that the imagery creator can is always identifiable as the author.
7. Intellectual Property Rights of Third Parties
Unless the imagery creator has given an express guarantee that permission to publish the images has been given either by persons depicted or by the owners off
the rights to works depicted from within the graphic or applied art sphere, it is the contractor’s duty to seek such third party permission as required in the individual
case or to procure authorisation to publish in relation to collections, museums etc.
In the event that buildings, objects or interior designs are copyrighted, the contractor shall obtain the necessary permission from the copyright owners in order to
make use of the images. Such permission must relate to use of the images by the photographer and/or third parties who are granted rights of use by the
photographer or to whom he/she assigns such rights.
The imagery creator does not accept liability for the manner in which his/her images are used. It is the responsibility of the contractor to ensure that no moral
rights, copyrights or other rights of third parties are violated.
8. Liability and Compensation
The imagery creator is only liable for damage caused by him or herself or his/her agents wilfully or due to gross negligence. This also applies to damage resulting
from a positive breach of contract or from an unauthorised act.
Delivery and return of images shall be at the risk and expense of the contractor.
In the event that images are lost whilst in the contractor’s area of risk, or images are returned in a state which prevents further normal usage, the contractor is
liable to pay compensation. In this instance the imagery creator is entitled to receive compensation of at least
€ 1,000.00 for each original and € 200.00 for each
duplicate, unless the contractor can prove that no damage has occurred or that the damage is worth considerably less than the lump sum compensation figure.
The imagery creator reserves the right to claim a larger amount of compensation.
In the event of unauthorised use, rearrangement or circulation of an image – irrespective of whether this is in its traditional or digital form – the imagery creator
reserves the right to impose a contractual fine amounting to five times the amount agreed or, if nothing has been agreed, five times the usual utilisation fee, and in
any event at least € 500.00 per image and individual violation. This does not affect any further claim to compensation.
In the event that the imagery creator’s name is not mentioned in relation to a published image (clause 5.4.) or the name of the imagery author is not permanently
linked to the digital image (clause 6.3.), the contractor is liable to pay a contractual fine amounting to at least 100 % of the amount agreed or, if nothing has been
agreed, 100 % of the usual utilisation fee, and in any event at least € 200.00 per image and individual violation. The imagery author also reserves the right to claim
9. Value-Added Tax
The contractor must pay valued-added tax at the relevant statutory rate on all fees, expenses and costs.
10. Legal Validity, Law and Jurisdiction
The nullity or voidability of individual clauses of these Terms and Conditions shall have no effect on the validity of all other clauses.
These Terms and Conditions are governed by the law of the Federal Republic of Germany.
In the event that the jurisdiction of the contractor is not Germany or if, after conclusion of the agreement, the contractor relocates his usual place of business
abroad, then the imagery author’s place of residence shall be used in determining the place of jurisdiction.