- Terms of Business
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- I.
General
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- 1.
The subsequent General Terms and Conditions of Business shall
apply to all orders, quotations and supplies and services implemented
by the photograph and text agency PICTURE POINT
2. They
are deemed to have been agreed following the customer's receipt
of user's supplies/services or quotation, in any case following acceptance
of the photographic material for publication at the latest.
3. In
the event that the customer intends to object to the General Terms
and Conditions of Business, he shall declare so in writing within
three working days. An objection is hereby made to diverging Terms
and Conditions of Business stipulated by the customer. Diverging
Terms and Conditions of Business stipulated by the customer shall
not be valid unless approved in writing by PICTURE POINT.
4. Within
the framework of an ongoing business relationship the General Terms
and Conditions of Business shall also apply to all future orders,
quotations and supplies and services, without having to include
them specifically.
II.
Photographic material surrendered for use
1. The
General Terms and Conditions of Business apply to all photographic
material provided to the customer, irrespective of its completion
stage or available technical format. The conditions shall apply
especially to electronic or digitally transmitted photographic material.
2. The
customer accepts that the photographic material supplied by pp-foto
consists of photographs in accordance with Û 2, Section 1,
Clause 5 of the Copyright Act.
3. Design
proposals or concepts commissioned by the customer are independent
services which must be remunerated separately.
4. The
surrendered photographic material remains PICTURE POINT's property; the aforesaid
shall also apply in the case of compensation payments.
5. The
customer shall treat the photographic material with due care and
may only pass it on to third parties for internal business purposes,
i.e. inspection, selection and technical processing. 6. Complaints
relating to the content of the supplied items or the content, quality
or state of the photographic material, must be communicated within
48 hours of receipt. The photographic material is otherwise deemed
to have been delivered appropriately, in accordance with the contract
and as noted.
III.
Rights of utilisation
1. In
principle, the customer only acquires a non-exclusive license for
single usage.
2. Exclusive
rights of utilisation, media-related or territorial exclusive rights
or blocking periods must be agreed separately and are subject to
a minimum surcharge of 100% on the relevant basic fee.
3. The
delivery only constitutes the transferral of the right of utilisation
for the single usage of the photographic material for the purpose
specified by the customer and in the publication, medium or data
carrier which has been specified by the customer or which results
from the relevant circumstances under which the order has been placed.
If in doubt, the relevant object (newspaper, magazine etc.) for
which the photographic material has been provided in accordance with
the delivery docket or the dispatch address, shall be decisive.
4. Any
use, utilisation, duplication, dissemination or publication beyond
the stipulations contained in Clause 3 is subject to payment and
requires prior explicit approval by PICTURE POINT. In particular, this
shall apply to - secondary utilisation or publication, especially
in anthologies, product-related brochures, advertising campaigns
or other reprints, - any editing, changing or redesigning of the
photographic material - the digitalisation, storage or duplication
of the photographic material on any type of data carrier (e.g. magnetic,
optic, magneto-optic or electronic carrier media such as CD ROM,
CDi, diskettes, hard drives, RAM, microfilm etc.) unless such transactions
are only performed for the technical processing of the photographic
material in accordance with Clause III, 3 of
the General Terms and Conditions of Business, - any duplication or
utilisation of the picture data on CD ROM, CDi, diskettes or similar data
carriers; - any recording or reproduction of picture data on the
Internet or in online databases or in other electronic archives
(this even applies to the customer's internal electronic archives),
- the disclosure of digitalised photographic material within the
scope of remote data transmission or on data carriers which are suitable
for public reproduction on screens or for the creation of hard copies.
5. Changes
to the photographic material implemented by photo-composing or photomontage
or with electronic aids for the creation of a new copyrighted item
are only permitted with PICTURE POINT's prior approval in
writing and only if such material is marked with [M]. Nor may the
photographic material be drawn, copied, photographed or otherwise
used as a motive.
6. The
customer is not authorised to transfer the rights of utilisation
granted to him to third parties including other group companies
or subsidiaries, either in whole or in part.
7. Any
utilisation, reproduction or transfer of the photographic material
shall only be permitted with the proviso that PICTURE POINT's copyright notice
has been attached.
IV.
Fees
1. The
agreed fee shall apply. In the event that no fee has been agreed,
the relevant work is governed by the current photograph fee guideline
issued by the Mittelstandsgemeinschaft Foto-Marketing (small business
association for photo marketing). The fee is subject to VAT at the
statutory rate.
2. The
fee shall only be valid for the non-recurrent use of the photographic
material for the agreed purpose, in accordance with Clause III,
3 or 2 of the General Terms and Conditions of Business. In the event
that the fee is also to include further use, this must be agreed
separately.
3. Any
costs and expenditure incurred by the order (e.g. material and laboratory
costs, model fees, costs for required props, travel expenses, per
diems etc.) are not included in the fee and shall be at the customer's
expense.
4. The
fee in accordance with IV. 1 of the General Terms and Conditions
of Business shall also be settled in full if the commissioned and
supplied photographic material is not published. If the photographs
are used as a working model for layout and presentation purposes,
a minimum fee of € 150 per photograph shall be payable, except as
otherwise agreed.
5. The
fee shall be paid within 3 weeks of the invoice date at the latest,
unless a shorter payment period is stipulated in the invoice. Following
a reminder, the customer is deemed to be in default. When default
occurs, interest of 10% p.a. shall be payable on this fee. Setoff
of costs or the exercise of the retention right shall only be permitted
in the event that the relevant claims brought forward by the customer
are undisputed and recognised by declaratory judgement.
V.
Return of the photographic material
1. The
photographic material must be returned in the form in which it was
originally supplied, without being asked to do so, immediately upon
publication or the agreed use, in any case within three months of
the delivery date at the latest. Two proofs must be attached. An
extension of the three-month period requires PICTURE POINT's written approval.
2. In
the event that PICTURE POINT surrenders photographic
material to the customer for test purposes only, at the customer's
request or with his approval, in order to determine whether utilisation
or publication is desirable, the customer shall return the photographic
material within one month of receipt at the latest, unless a different
period is stipulated in the delivery docket. This period may only
be extended if confirmed by White Star in writing.
3. The
photographic material shall be returned at the customer's expense
and with the customary packaging. The customer shall bear the risk
of loss or damage during transport until such time as the package
has been received by PICTURE POINT.
VI.
Contractual penalty, blocking, compensation
1. Each
incident of unauthorised use, utilisation, reproduction or transfer
of the photographic material (without PICTURE POINT's approval) is subject
to a contractual penalty of five times the usage fee, subject to
further claims for damages.
2. In
the event that the copyright notice is not included, incomplete,
incorrectly placed or non-allocable, a surcharge of 100% of the
utilisation fee shall be paid.
3. In
the event that the photographic material is not returned in good
time (blocking), the period after the expiry of the periods specified
in Clause V.1 or 2, is subject to a contractual penalty amounting
to - € 0.50 per day and picture for black & white or colour
prints or slide duplicates - € 2 per day and picture for slides,
negatives or other unique copies
4. Damaged,
destroyed or lost photographic material is subject to compensation
without pp-foto having to furnish evidence of the amount of damage
incurred, where such damage amounts to: - € 80 per black & white
or colour print or KB slide duplicate - € 250 per medium or large
format slide duplicate - € 1,500 per slide original, negative or
other unique copy - € 3,000 per non-reproducible slide, negative
or other unique copy In the case of damage, the above rates must
be reduced in accordance with the relevant extent of damage and
the scope of remaining utilisation options. In principle, both contracting
parties reserve the right to furnish proof of more/less damage.
5. In
the absence of a proof or when billing is implemented without a
proof or when billing is implemented without specifying which picture
has been used where and in which publication, a contractual penalty
of 50% of the usage fee is to be paid.
6. The
payments in accordance with Clause VI do not
substantiate any rights of use.
VII.
1. These
conditions are governed by German law, also in the event that deliveries
are effected abroad.
2. Ancillary
agreements to this contract or to these General Terms and Conditions
of Business must be implemented in writing in order to be effective.
3. In
the event that one or several stipulations of these General Terms
and Conditions of Business are void or ineffective, the validity
of the remaining stipulations shall not be affected. The parties
are obliged to replace the invalid stipulation with an analogous,
effective regulation that corresponds as far as possible to the
intended regulation in terms of its economic and legal effect.
4. The
place of performance and court venue shall be Leipzig. General Terms
and Conditions of Business
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