Supply and business conditions for the supply of picture material in analogous and digital form for the granting of utilization rights.

A. General

1.
All offers, supplies and the granting of utilization rights are exclusively provisional and not exclusive with regard to the business conditions below. Other arrangements of utilization rights must be agreed upon/negotiated separately (individually).

2.
Any differing business conditions of the customer are only valid after written confirmation by the agency. Any business conditions of the ordering customer referred to by the customer in order forms, delivery confirmations or the like in files of his own, computers, in the Internet or appropriate media are herewith invalidated. In the case of delivery and the following use of analogous pictures as well as in the case of the transmission and the following use of electronically transmitted picture data a contractual relationship only comes about on the basis of these general business terms, otherwise the sent pictorial material or the transmitted picture data may not be used.

3.
The refusal of our terms of supply only gains validity through the return of the supplied picture material within three working days of receipt by the customer and (with digital pictorial material) by deletion of the so-called “Low resolution material” and a referring written confirmation through the agency before high-resolution data is demanded.

4.
Complaints concerning the content of the consignment (when analogous material is being sent) must be reported by phone within two working days of receipt of the picture material and within a further three working days in writing; complaints (also in the case of digital pictorial material) concerning technical or other hidden faults are to be made immediately on their discovery in writing. With the omission of such complaints a liability on our part for possible already incurred or possibly developing future costs/damage is excluded.

5.
When ordering but at the latest before technical use of the pictures, the customer must state the type, extent and language area of the planned utilization and in case of advertisement also the product. The use of the material is only permitted after the agency has agreed upon the planned use and the communicated intended purpose. “Low resolution material” from the website of the agency may strictly not be used for any further publication and spreading. A digitization of analogous material and the passing on of digital material by means of data transmission or via data carriers is only permitted to the extent in which the customer’s granted rights of use require this.
If the type of utilization does not correspond with the customer’s information or if the utilization does not correspond with the customer’s information on the actual utilization, the agreement for utilization will be regarded as not given and the agency is released from entitlements of third parties; in any other case the regulations of section E of these business terms will be applied to such cases.

The delivered or offered picture /the offered picture data may not be changed or worked upon in any way without previous written agreement by the agency.

6.
Supplied analogous picture material always remains the property of the agency /originator. It will only be made available for a certain period and for the acquisition of utilization rights based on the copyright. A corresponding regulation is valid for digital picture material, respectively for picture data provided to the user.

7.
Picture material on which the customer does not want to acquire utilization rights or has not acquired them must be returned within the period stated on the delivery note (if analogous material is concerned), with excess of the lending term blocking costs according to column E of these general business terms will result. In case of non-acquisition of utilization rights on digital picture material the electronic picture data are to be deleted immediately.

The picture to which the customer has acquired utilization rights and/or has stated his intention for usage, has to be returned within 90 days after receipt (for analogous material), no matter whether the customer has used it or not. As regards to digital material an appropriate period for deletion of likewise 90 days is applicable.

8.
All pictures supplied are subject to administrative charges and postage and packing according to the type and extent of costs incurred. In addition, we charge for the obtaining of third party material and information commissions or information fees according to the type and extent of costs incurred; this applies likewise for the procurement of corresponding digital picture material or suitable electronic picture data. A balancing with possible utilization fees is ruled out. With the payment of administrative charges, the customer acquires neither utilization nor ownership rights (See in addition column B 7.).

Through the payment of compensation and/or a penalty calculated on the basis of these contractual terms according to column E, the customer acquires neither ownership nor utilization rights of the picture material.

B. Fees

1.
Any utilization of our picture material is subject to royalties. This applies also to the utilization of a picture as a model for drawings, caricatures, postpositive photos or layout purposes and presentations for customers as well as when utilizing picture details for new pictures developed with montage, photo composing, electronic picture carriers or similar techniques.

2.
Fees must be agreed upon before utilization. They relate to the media, type and extent of utilization which must be declared before utilization. If the customer does not inquire about charges or if no charges are agreed, the respective valid charges of the agency will apply; beyond that the standard rates of the German tariff commission MFM (Mittelstandsgemeinschaft Foto-Marketing) in their latest published version will be considered as valid basis for each fee-calculation.
All charges stated in offers, price lists or other documents are calculated without VAT and artist’s welfare/ social security contributions.
Any charges and cost calculations are to be paid to the agency within one week after invoice without any deductions.

3.
Photos involving photographic models, aerial photos, underwater photos, expedition photos and other photos made under exceptional circumstances and costs are always subject to an additional charge based on the basic fee and the respective utilization purpose.

4.
Fees apply only for one utilization and for the purpose, extent and language area announced. Any further use requires new charges and our written approval in advance. In case of non permitted usage and/or the passing on of our picture material to others penalties according to column E.1. of these general business terms will come into effect.

5.
If an illustrated object (such as a book, a record sleeve, a CD-Cover, a DVD cover, a brochure or the like) is depicted in a new medium and is still recognizable from its photo-content, a fee must be paid for the photo depicted in it in addition to the fee paid for the utilization rights of the same photo in the original context of usage.
This applies in particular to any usage in advertising. The user must inform the agency on the new utilization and seek written agreement for this utilization in advance, otherwise the penalties according to column E .1. of these general business terms will be applied.

6.
Exclusive rights or required limitations of further circulation and usage on the side of the agency must be agreed upon separately and a minimum additional charge of 100% on top of the basic fee is payable.

7.
The compilation of a choice of analogous pictures is charged with a handling fee which depends on the quality and amount of work involved, but will always amount to a minimum of € 30.-. Charges for scans and data transfer are calculated according to the arrangement between ordering customer and agency. Intensive research and additional procurement of pictures require additional handling charges, which depend upon the invested amount of work.

The customer is liable to pay postage, aerial freight and courier costs; the same applies to photographic and repro-technical expenses.

8.
As soon as the customer has given notice that he wants to use the picture material which he has received by post, courier or by means of an electronic transfer, the agency is entitled to charge the fees, even if the publication or other intended use has not yet been realized.

9.
If the planned publication or intended use does not take place, any fees already paid cannot be reimbursed / reclaimed.

10.
Payments of fees must always be made by stating the customer number, photo number (guide number) and the name of the originator. Without this information, an additional administrative fee must be paid subject to the extent of the additional costs.
In addition, when settling the account the customer must state in detail which photo was used
in which publication and in which place.

C. Limitation of disposal, liability, utilization rights and copyright.

1.
All picture documents must be treated as originals. On principle, only the utilization right of the photographic copyright will be transferred. This applies in particular to picture documents which, based on the content of the picture, are subject to another copyright (for example, pieces of fine and performing arts). Fees for further utilization rights and permission for publication from collections, museums etc. must be paid or obtained by the user.

2.
The distortion of the piece (photo) protected by copyright through copying, re-photographing, photocomposing or by using other electronic aids is not permitted. Exceptions are subject to a special agreement.

Usages which are contradictory to the innate message of the picture, falsifications/changes in picture and word as well as usages which might lead to a disparagement of illustrated persons are not permitted and make the user liable to pay damages; furthermore in such cases the user is obliged to keep the agency free from any claim from the injured persons and/or involved third parties.

3.
The passing on of the picture material or of electronically transferred picture data or the passing on of reprinting rights to third parties is not permitted (See in addition column B.4). In addition, slide duplication and the production of inter-negatives, reproductions and enlargements for the customer’s archives as well as the storage of electronic picture data and the passing on of these to third parties is not permitted. Exceptions are subject to a special agreement and require our written approval. The customer is obliged to inform us whether and to what extent he has duplicated, stored data of pictures or other lay-outs and copies for his own archival purposes.

4.
The user is obliged to observe the journalistic principles of the German Press Council (Press Code). The user or customer is responsible for his text. We are not liable for infringements of the general personal right of pictured persons or the copyright of the originator caused by a non-agreed or distorting utilization of the picture and / or text. If such rights are violated, the user alone is obliged to pay compensation to third parties.

5.
The publication of photos of well-known personalities is only permitted for editorial purposes and by stating their names; any entitled interest of the pictured person in the sense of § 23 Abs. 2 Kunsturhebergesetz (German law regulating art and copyright questions) which might hinder such publications is to be considered by the user of the images.

6.
We explicitly reserve the right to transfer secondary rights to utilization companies and do not acknowledge clauses which rule out the exploitation of further rights after acceptance of a fee with the exception of cases in which the ordering customer/user was granted the exclusive right for the concerned pictorial material.

7.
The postage risk for the return of analogous picture material is borne by the sender due to the legal relationship of a loan which is underlying this transaction. Costs and risks for the complete and correct return and for unsuitable or inadequate packaging are borne by the customer who is obliged to pay compensation in the case of loss or damage even if the return to the picture agency has been made by a third party commissioned by the customer (§ 278 BGB); concerning the payment of damages which can be carried out in such a case, the regulations in column E4. relating to these general business terms will be applied . If picture masks and labeling are missing, the consignment is regarded as incomplete and possible administrative costs must be met by the customer.

D. Copyright / voucher copy

1.
Based on § 13 UrhG (Copyright) we require that the agency procuring the picture material and the originator are named explicitly, i.e. in such a way that no doubt may arise over the assignment of the respective picture. Summaries are only sufficient if they clearly assign the picture to the agency and originator. The user will release the agency from entitlements of third parties resulting from the omission of copyright notes referring to author and/or agency.

2.
As long as no special agreement has been concluded, point 1 will also apply to advertising, insertions in TV programs, movies or other media.

3.
According to § 25 VerlagsG. (Publishing Act), a minimum of two complete copies of publications must, free of charge and without being asked for, be submitted to us during the print-run.

E. Conventional penalty / Flat rate compensation
(compare also with E in the appendix)

1.
In case of unauthorized utilization, distortion or passing on of our picture material or unauthorized passing on of reprinting rights to third parties as well as unauthorized production of slide duplications, internegatives, reproductions and enlargements, and the production of copies from digital data material or physical presentations of the picture contents contained in the digital material for the customer’s archives or passing on of these to third parties and for the case that the customer has failed to delete the data after usage as it is foreseen in this contract, a minimum charge of five times the usual basic utilization fee is agreed respectively five times the fee which would be due according to the latest published version of the royalty recommendations of the MFM. In addition we reserve the right to demand compensation.

2.
If no labeling of the originator and/or agency was made we are entitled to charge an additional fee of 100% of the respective utilization fee plus possible administration costs incurred.

3.
If the material is returned after the charge-free deadline agreed, blocking costs will, in accordance with E, point 1 in the appendix, be charged for utilized pictures. For longer continuing blocking periods such blocking costs are limited to the loss value of the respective pictorial material according to appendix E2c

This applies also for offers made without obligation as long as the receiver of the consignment is a permanent user of picture material offered free of charge (in constant business relation).

According to E, point 1 in the appendix, so-called blocking-charges must, in addition to the utilization fee, be paid if the picture material, of which the user has acquired utilization rights and/or which he has announced the intent to do so, has not been returned within 90 days of receipt.

4.
In accordance with the graduation stipulated under E, point 2 in the appendix, compensation must be paid for damaged or unreturned analogous picture copies. The respective amounts for each analogous picture stipulated in the graduation are regarded as agreed. The picture agency has no obligation to prove individual damages. Compensation will be calculated based on the lapse of further utilization opportunities. The customer may prove that the damage was lower than calculated. Moreover, we reserve the right to claim additional compensation and blocking costs (in case of damage or loss, up to the amount of compensation).
Spare duplicates or scanned picture data or stored electronic data or replacing material produced in any other way by the customer who is liable for damage compensation, will not be accepted.

5.
If analogous picture copies reported as lost are found and returned within one year we will reimburse one third of compensation, whereas blocking costs which are due at the time of return of the picture remain due, respectively will not be refunded if they have been paid.

F. Conditions of payment, place of jurisdiction, other matters

1.
Our invoices are to be paid within 30 days after receipt without any deductions; at the expiration of this term we charge an accumulated interest at the rate of 5% above usual German interest rates according to § 288 Abs. 1 BGB (German Civil Code).

2.
As long as both sides are qualified merchants, the place of jurisdiction and performance is Hamburg.

3.
For any supplies abroad (via post, courier or data-transfer) German law applies.

4.
Should one paragraph of these supply and business terms be invalid, the validity of the remaining paragraphs and contract as a whole remains unaffected.

Appendix to E (Conventional penalty / flat rate compensation)

1.

Blocking costs for each analogous picture and day after the deadline has been exceeded:

2.

Flat rate compensation in case of damage, destruction/loss of colour slides, colour prints, negatives (i.e. of any original picture material)

3.

4.

Data transfer for digital deliveries / Download

Terms as stated in July 2005