General Terms and delivery conditions of the photo agency delosfoto concerning the analogue and digital graphical material and the granting of utilization rights

1. Preface

1.1 The BVPA-code of honor which was enacted by the BVPA-plenary meeting 25.04.1997, is applied. It contains the following articles:

1.1.1 Each member affirms to respect the copyright and to act according to this law.

1.1.2 Each member affirms to draw up contracts which assure that no contracting party is intentionally and grossly disadvantaged.

1.1.3 Each member affirms to hold on signed contracts with image-providers and costumers as long as this is capable of being influnced.

1.1.4 Each member affirms to take account to the customary trade practice for the business connections with image-providers and costumers.

1.1.5 Each member affirms not to make intentionally incorrect declarations concerning copyright and the usage of images toward its photographers as well as toward its customers.

 

 

1.2 All offers, deliveries and awarding of copyrights occur without engagement and non-exclusive according to the below-mentioned general terms. Ulterior arrangements have to be agreed upon separately.

1.3 The purchaser’s aberrations of the General Terms do not apply unless they are confirmed in written form by our agency. The purchaser’s general terms which are referred to in business documents or in their very own database, computers, in the internet or in analogous media, are contradicted explicitly at this point. In case of delivery and – where required – usage of analogue graphical material as well as in case of the transmission and – where required – usage of electronically transmitted image data, a contractual relationship is only accomplished in dependence on our general terms. Otherwise, the transmitted graphical material – respectively the transmitted image data – may not be used.

1.4 A denial of our General Terms is only valid if (in case of analogue graphical material) the delivered original graphical material is reshipped within five weekdays upon receipt of the graphical material by the purchaser, or via (in case of digital graphical material) the deletion of the so-called “Low Resolution Materials” and a confirmation concerning this matter in front of the stock photo agency before requiring the high resolution quality data.

After an Image Download has taken place, it is deemed to represent issue of order and acceptance of the Conditions of Business of delosfoto Agency.

Generally, we assume that you are aware of our General Germs before requiring graphical material.

1.5 Claims concerning the deliveries’ contents (analogue graphical material) have to be communicated telephonically within two weekdays upon receipt and in written form within another three weekdays; claims concerning technical or other hidden defects (analogue and digital graphical material) have to be communicated in written form immediately after detection. If such a claim is defaulted, we exclude any liability for eventually occurred or occurring costs or disadvantages.

1.6 The purchaser has to declare form and extent of the intended usage as well as – in case of advertisement – the name of the product in time with the booking or before a Download. Untruthful statements concerning the usage entitle delosfoto to contractual penalties in accordance with Chapter 5.1 to 5.3.

The graphical material’s usage is not permitted until the agency has agreed upon the intended usage as well as upon the communicated application. “Low Resolution Material” from the agency's website is strictly not disposable for publication and distribution. The digitalization of analogue material as well as the transmission of digital material via remote data transmission or via any media is only permitted as long as appropriate for the exercise of the purchaser’s rights of use. The usage accordance is not considered to be granted if the purchaser’s specifications do not correspond to the actual type of use or if the actual type of use is not consistent with the purchaser’s specifications. In such a case, the agency is exempted from compensation claims of a third party; apart from that, the arrangements of section 5 of the General Terms are applied to such a case. The delivered respectively offered graphical material/ the image data may not be edited or changed in any way without a previous written affirmation of the photo stock agency.

1.7 The delivered analogue graphical material always remains in possession of the agency/the author. The disposed material is provided only temporarily and only for the purchase of rights of use according to the copyright. The same applies to digital delivered graphical material respectively – if provided – all other image data.

 

 

1.8 If the purchaser does not want to acquire the rights of use for a graphical material, the (analogue) material in question has to be returned within the limit of time specified on the receipt of delivery. If the borrowing time is exceeded, blockage charges according to section 5 of the General Terms are accrued. The electronic image data (digital graphical material) has to be deleted immediately in case of not purchasing the rights of use. CDs/DVDs with image data have to be returned as well. Graphical material (analogue) which has been acquired by the purchaser and/or for which the purchaser has manifested his intentions, has to be returned within 90 days after delivery, no matter if the purchaser really used it or not. For transmitted digital material a corresponding deletion deadline of 90 days applies.

1.9 Administrative and forwarding charges which result from extent and manner of the made efforts are subjected for all analogue image deliveries. Equally, we charge commission and information dues which arise from extent and manner of the made efforts for providing foreign materials or information; this also applies to the supply of digital graphical material and other image data and cannot be set off against potential usage fees. By paying the administrative charges, the purchaser does neither acquire any rights of use nor any property rights. By providing compensation for damages and/or contract penalty, calculated according to section 5 of the general terms, the purchaser does neither acquire any rights of use nor any property rights.

1.10 A successful Image Download is a legally fully valid contract and becomes obligatory. The payment of the announced price has to be done.

 

 

2. Fees

2.1 Any usage of our graphical material is subjected to a usage fee. This applies also to the usage of an image as a guideline for drafts, caricatures or readjusted photos, to the usage for layouts or customer presentations as well as to the usage of image details which become part of a new image via montage, photo composing, electronic data media or similar techniques.

2.2 Fees are agreed upon before usage. They are based on form and extent of usage which have to be communicated to us. If the purchaser does not request a fee or if no fee arrangements are taken, the usual fee rates of the agency are automatically applied; for the rest, such fees are charged according to the latest version guidelines of the MFM (“Bildhonorare der Mittelstandsgemeinschaft Foto-Marketing (MFM) – Übersicht der marktüblichen Vergütung für Bildnutzungsrechte”). All fee information in offers, price-lists and other documents (also electronic) are to be perceived net exclusive of the value added tax (VAT) and the levy for the social security for self-employed artists. All fee and cost accountings have to be paid within 30 days without discount. The agreements written on the bill apply.

2.3 For photo models, aerial photography, submarine shots, expedition photos or photos taken under any other unusual circumstances and/or connected to any other unusual costs, an additional charge to the corresponding basic fee is categorically charged. The basic fee normally include these surcharges.

2.4 The calculatet fees are valid for for all edition sizes, display sizes, global usage, Print and/or Online, usage time 2 years. After the time of usage is elapsed or in case of extended new usages, the license for the image has to be renewed. Untruthful statements concerning the usage entitle delosfoto to contractual penalties in accordance with Chapter 5.1 to 5.3.

2.5 The usage fee depends on its extended use. Print, online, PDF-Download and App account for 4 Image usages. If the extended use in this example overruns 6 usages, the licensing has to be renewed.

The User has to declare the extended usage to delosfoto and provide a written consent for the usage before, otherwise the penalties according to chapter 5 .1 to 5.3 of these general business terms will be applied. 

2.6 Exclusive rights or blocking periods have to be agreed upon separately. They cause at least an additional charge of 100% to the particular basic fee. Exclusive rights have to be declared within the price calculation.

2.7 For the acquiring and compilation of analogue graphical material, an administrative charge is subjected which results from the extent and the manner of the needed efforts but at minimum amounts to 30 €. Charges for scans and image are calculated as agreed upon. For costly researches and respectively image acquisition separate administrative charges have to be paid which result from the extent and the manner of the made efforts as well. The costs for postage, aerial carriage and courier charges are beared by the purchaser; the same applies to photographical or reprotechnical costs.

2.8 As soon as the purchaser has communicated that he wants to use the delivered or electronically transmitted graphical material completely or partly, the agency is authorized to charge the assignment of the usage rights. This also applies if the publication or other usage has not taken place, yet.

 

 

2.9 Fees already having been paid cannot be reclaimed/repaid if the foreseen publication or other usage does not occur.

2.10 Payments are always to be made with the declaration of the invoice number. If these declaration is missing, an additional allowance for special expenditure resulting from the extent of the supplemental efforts can be charged. Above all, the using details (which image was used in which publication at which place) have to be declared within the accounting.

2.11 A launched Download by a user is a legally fully valid contract and becomes obligatory. The payment of the announced price has to be done.

3. Restraint on disposal, liability, patent and copy rights

3.1 All analogue master images have to be treated like originals. Generally, only the right of usage for the photographic copy right is transmitted. This applies especially to master images which are subjected to an additional copy right (e.g. creations of fine or visual arts). The replacement for further copy rights as well as the attainment of publication authorizations by collections, museums etc. falls to the purchaser.

3.2 A creation of a copy right protected work (photo) via drawing, photocopying, photography, photo composing or any electronic additives is not permitted. For exceptions, a separate agreement is required. Unsuitable uses and/or  falsification in word, vision and usage which may lead to a disparagement of the pictured persons are illegal and render the purchaser liable to pay damages. Beyond that, the purchaser has to keep the photo stock agency free of eventual claims of the harmed persons and/or of third persons.

3.3 The transmission of the graphical material or of the reproduction rights or of electronically transmitted image data to third persons is not permitted (q.v. section 2.4). Alike, the slide duplication and the production of internegatives, reproductions and amplifications for the archive of the purchaser are not permitted. The same applies to the storage of electronic image data and/or their transmission to third persons. Exceptions require our written agreement. The purchaser is obliged to provide any information concerning the manner and extent of eventually given duplications, storage image data and production of archive master images.

 

 

3.4 The purchaser is subjected to pay regard to the publicist principles of the German “Presserat” (“Pressekodex”). The user/purchaser is responsible for the caption of the photo. We are not liable for the invasion of personal privacy of the pictured persons as well as for the infringement of a copy right via distorting in image and or/text. In case of the infringement of those rights, only the user is liable towards eventual third persons.

3.5 The publication of photos of popular personages may only occur only editorial and linked to their names. The user has to consider eventual contrary legitimated interests of the pictured person(s) according to § 23 Abs.2 “Kunsturhebergesetz” (KUG).

3.6 We explicitly reserve our right to transmit secondary rights of use to a collecting society. Clauses according to which the perception of further rights is excluded by the payment of the fees are not accepted. This does not apply in case of the transmission of exclusive rights of use of the graphical material to the purchaser/user.

3.7 The shipping risk for the return of analogue graphical material is born by the purchaser due to the underlying lending legal position of the purchaser. Charges and dangers of a complete and proper return and of improper or defected package are subjected to the purchaser. The purchaser is liable in case of loss or damage, also if the return to the photo stock agency is accomplished by third persons (§278 BGB); for such liability, section 5.4 of General Terms in connection to the appendix of section 5 is applied. The absence of framing masks is also considered as a case of incomplete return, possible administrative charges are subjected to the purchaser. Data carriers have to be returned too.

 

 

 

4. Copy rights / voucher copy

4.1 Invoking the principles of § 13 UrhG, we explicitly demand an assignment of a copy right note for the author as well as for the photo stock agencyin the form "©Sigfried Thomas / delosfoto GmbH“. This has to be provided in a manner which excludes all possibility of doubt concerning the attachment between copy right note and image. Accumulative image certifications are only sufficient if the exact attachment between the copy right note and the image is accomplishable. The user has to keep the photo stock agency free of liability towards third persons in case of neglect of the copy right note.

4.2 Section 4.1 is explicitly also applied to advertisement, flashes in television and radio broadcasts or in any other media if no specific special agreement has been made.

4.3 From any printed publication, at least two complete voucher copies have to be sent to us cost-free and unrequested according to § 25 VerlagsG. If other media are used, voucher copies have to be provided in digital form according to a separate agreement.

5. Contract Penalty / blanket indemnity

5.1 At least the fivefold of the usual or agreed-upon charge or of the charge calculated according to the principles of the MFM (with exception of further indemnities) is subjected if our graphical material is used, distorted or transmitted unauthorized. The same applies in case of unauthorized transmission of reproduction rights to third persons, unauthorized production of slide duplications and internegatives as well as in case of unauthorized fabrication of reproductions, amplifications and of copy-fabrication of digital data or analogue displaying of image data for archiving purposes. The same applies also to the transmission of all these to third persons. Beyond that, the same applies if the purchaser neglects to delete the image data according to the contracts principles.

5.2 If the copy right note for the author and/or photo stock agency is omitted, we are eligible for a duplication of the calculated usage fee in chapter 5.1 and eventual additional administrative charges for each relevant image.

5.3 In case of the removal of our logos our any other labels from our previews from the website, a contract penalty of 200,00 € is subjected.

5.4 If analogue graphical material is not returned after the expiration of the cost-free viewing period or if it is returned behind schedule, according to appendix 5.1 so called blockage charges are subjected for not usable images. Such blockage charges are, in case of a long enduring blockage period, limited by the value if a total loss of the graphical material according to appendix 5.2c. This also applies to free offers, if the receiver is a constant purchaser of freely offered graphical material (constant business relations). If the purchaser does not return graphical material, for which he acquired the rights of use or for which he communicated a usage intention, within 90 days after receipt, blockage charges according to appendix 5.1 are subjected additionally to the usage fee.

 

 

5.5 If analogue image masters are damaged or not returned, compensations have to be paid according to the grading described in appendix 5.2. The particular amount of grading is applied without a special need of prove concerning the exact claim for the photo stock agency. The amount of the compensations is calculated from the omission of further use. In particular cases, it is subjected to the purchaser to prove eventual lower damage. Alike, in particular cases, further claims and blockage charges (limited by the value of a total loss) are subjected to us. We will not accept any offered compensatory duplications or any other compensatory photography based on scanned masters or storage electronic image-data of the party liable for damages.

5.6 If analogue graphical material counted for loss is located and returned within one year after receipt, we compensate one third of the loss indemnity. The calculation of blockage charges remains subjected respectively already paid blockage charges are not returned.

5.7 Analogue graphical material is sealed. If a sealing is removed without declaration of a specific usage, layout charges are subjected according to appendix 5.3. Eventual further claims remain subjected.

5.8 The chapter “Image Delivery”, which is updated permanently, is considered as part of these General Terms.

6. Term of Payment, Location of Jurisdiction, Miscellaneous

6.1 Our bills always have to be paid net within 30 days after receipt. After the end of term, interests for delay in the amount of 5% above the base rate are subjected according to §288 Abs.1 BGB. Special provisions for discounts or rebates must be arranged.

6.2 If both parties are registered traders, the location of jurisdiction as well as the place of performance unexceptional is Dieburg.

6.3 Also in case of abroad delivery, the German law is considered to be agreed upon.

6.4 If any clause of these General Terms and Conditions of Delivery is revoked, the validity of the remaining clauses is not constrained.

Generally, we assume that you are aware of the General Terms of the photo agency delosfoto before requiring or downloading graphical material.

 

Appendix to 5. (Contract Penalty/ Blanket indemnity):

1. Blockage charge for exceeding the obligation of return of analogue materials for each original and day:
Coloured original	1,50 €
2. Generalized compensation in the case of damage, ruination/wasting of slides, originals, masters (that means of every original-material):
Sleight damage, further usage possible	150,00 €
Serious harm, further use shortened	250,00 €
Damage/ruination dia up to 6 x 9 cm	500,00 €
Damage/ruination dia 9 x 12 und 13 x 18 cm	600,00 €
Damage/ruination Dia 18 x 24 cm	1000,00 €
3.Layout fee for damaged layout sheets of analouge originals (images undamaged) additionally	50,00 €