General Terms and Conditions for Business Transactions of
plainpicture GmbH & Co. KG (as per 25 November 2005)
1. The following General Terms and Conditions (hereinafter referred to as “General Terms and Conditions”) shall apply to all business transactions between you (hereinafter referred to as “Customer”) and plainpicture GmbH & Co. KG (hereinafter referred to as “plainpicture”). (If you enter into a business relationship with plainpicture on behalf of your employer, you simultaneously warrant your power to do so and enter into the business relationship on your and your employer's behalf.) The latest version of the General Terms and Conditions, as amended, shall be applicable. Any general terms and conditions which may be in conflict with these General Terms and Conditions, deviate from them or complement them in any way, shall not become an integral part of this contract even if we are aware of their existence unless we have expressly acknowledged them in writing to be effective.
2. The term “pictures“ shall be defined as any images and associated documented informations on any medium whatsoever which may have been provided by plainpicture under these General Terms and Conditions, including texts, headings, captions or information. The Customer undertakes to pay a licence fee according to the terms and conditions of the invoice and these General Terms and Conditions for the pictures.
3. The “invoice” shall be issued by plainpicture and shall constitute an integral part of these General Terms and Conditions. It shall, in unlimited form, comprise the admissible intended purpose of the selected pictures, any licence limitations whatsoever in addition to those specified in the General Terms and Conditions as well as the price of the licence for the pictures concerned.
4. Offers shall exclusively be made and shipments shall exclusively be effected and rights of use shall exclusively be awarded without obligation or binding effect. The fact that plainpicture presents pictures on a website shall not constitute an offer but rather an unbinding request to the customer to make an offer for contract.
5. When placing an order, before making technical use of the pictures at the latest, the Customer shall indicate the nature and scope of intended use. In accordance with the Customer's statements, plainpicture shall give its written consent to use of the delivered pictures. If the ordering party's statements do not conform to the actual nature of use or if the actual use does not conform to the ordering party's statements, plainpicture is understood to not have granted the consent to use.
B. Granted Rights and Limitations
1. Subject to other provisions made in the invoice, plainpicture shall grant the Customer a non-exclusive, non-sub-licensable and non-assignable right to publish the pictures in part or in whole via any medium and any means whatsoever, distort or manipulate the pictures in part or in whole.
2. Use of the pictures shall strictly be limited to use, medium, period, print, positioning, size of picture, territory and other conditions indicated on the invoice. This rule shall not apply to use of royalty-free pictures. Customers shall be entitled to use royalty-free pictures without temporal or geographic limitations.
3. No property rights or copyright shall be transferred by granting rights of use. The pictures shall only temporarily be placed at the Customer's disposal for the agreed type of use. After this period has ended, the pictures must be deleted from the Customer's electronic memory systems. Any pictures which have not been used must be deleted from the Customer's electronic memory system within thirty (30) days of delivery at the latest. The obligation to delete shall not apply to roalty-free pictures.
4. Royalty-free pictures may, as a maximum, only be used in the delivered size or resolution. Interpolation or scaling shall not be permitted.
5. The pictures may not be used in pornographic, defamatory or illegal way, neither directly nor implicitly or in combination with other materials.
6. The pictures may not be integrated into logos, registered trademarks or service marks.
7. Use of pictures on which a model appears in such a way and matter that the average observer would not consider it to be flattering or consider it to be controversial shall only be permitted in exceptional cases subject to plainpicture's prior written approval.
8. Use of the pictures without regard for any limitations of the intended use the Customer was made aware of before or during delivery of the pictures shall not be permitted. Limitations may be comprised in the information supplied with the pictures or in the invoice or via the website or in any other communication with plainpicture.
9. plainpicture shall inform the Customer of the release status of the pictures, i.e. whether a model release or property release for the respective picture has been substantiated to be available, either in supplemental information via the pictures on the website or on the invoice or in any other communication. A picture marked with “model release: YES” means that the individual presented on the picture as central motif has signed a statement to the effect that reproduction of the picture with the illustrated individual is permitted subject to the limitations defined in these General Terms and Conditions. A picture marked with “property release: YES” means that the owner of the property presented on the picture as central motif has signed a statement to the effect that reproduction of the picture with the illustrated property is permitted subject to the limitations defined in these General Terms and Conditions. A Customer intending to use merely a section of the pictures must obtain a prior written confirmation of release status for the section from plainpicture.
10. plainpicture shall not represent any rights and make any warranties regarding the use of names, individuals, trademarks, trade dresses as well as non-registered or non-copyrighted designs, works of art or buildings illustrated on the pictures. If the Customer is not sure as to whether an additional licence must be obtained prior to use, the Customer shall be responsible for obtaining legal advice from a competent expert.
1. plainpicture guarantees the absence of defects in material and workmanship in the pictures for the duration of thirty (30) days from delivery. If the pictures prove to be defective, the only remedy available is for the pictures to be exchanged.
2. plainpicture does not grant any further guarantees, neither expressly nor implicitly, regarding the pictures, including, without limitations, any tacit guarantees regarding marketability and capability for a certain purpose. plainpicture may neither be held liable by the Customer nor by any other individual or legal entity for claims for damages, including penalty, general damages, special, consequential or indirect damages, including damage caused accidentally, for lost profits or any other damage, costs or loss which may arise from use of the pictures by the customer or in any other way even if plainpicture was notified of the possibility of such damage, costs or loss being caused, except for liability which may neither be legally excluded nor limited. plainpicture's liability for damage caused by or in connection with use of the pictures by the Customer or the impossibility of the Customer to use the pictures shall, to the extent permitted by law, be limited to ten times the price paid by the Customer for the pictures. Any statements and guarantees made by plainpicture shall only apply to the pictures in the form delivered by plainpicture and shall become void if the Customer makes use of the pictures in any manner or way which is expressly prohibited by these General Terms and Conditions or if the Customer has committed any other breach of contract.
D. plainpicture's Online Data Base
1. plainpicture enables the Customer free access to plainpicture's online data base. Image data may only be downloaded after image data download has been enabled by plainpicture. plainpicture shall not be required to permanently enable download. The Customer shall be required to obtain the necessary client software himself.
2. High and low resolution data may only be downloaded with a valid user number and password. The Customer shall be required to treat such user number and password as confidential. If the Customer's access data were to be used by an unauthorised party, the Customer shall be held liable for any damage caused.
3. The Customer shall not have a claim to permanent availability of plainpicture's online data base. plainpicture may temporarily or permanently withdraw the plainpicture online data base from the Internet and change, delete or supplement the contents saved in this data base at any time.
E. Fees, Charges and Costs
1. Use of the pictures shall be subject to payment of a fee. This shall also apply, though not ultimately, to use of a picture as a model for drawings, caricatures and pictures with a similar motif, use for layout purposes and customer presentations as well as use of image details which become part of a new picture by means of photomontage, photo composing or similar techniques.
2. Fees must be agreed before use. They shall be based on the medium, nature and scope of use. If the Customer fails to inquire for the fee prior to use and if no fee has been agreed upon in any other way, plainpicture shall automatically charge the Customer according to the agency's fee schedule, as applicable. If the ordering party fails to make any exact statements, the agency shall be entitled to charge the party a lump sum. Any fees stated in offers, price lists and other documents are always net without value-added tax and other duties.
3. As soon as the customer has declared that he is intending to use the pictures supplied in whole or in part, plainpicture shall be entitled to invoice him for the awarding of rights of use even if publication or other use has not yet taken place.
4. Image data/ scans specifically made on behalf of a Customer which have been transmitted shall be invoiced separately.
5. Fees must always be paid subject to statement of customer and image numbers. Without these statements, plainpicture will have to charge the Customer an additional expense depending on the scope of additional efforts. The statement must also indicate in detail which picture was used in which publication on which position.
6. Invoices shall be payable within ten (30) days of the date of the invoice. After this period has lapsed, the Customer shall be considered to be in arrears with payment. For the duration of default, the Customer shall be required to pay interest totalling the base rate plus 5% on top of the amount outstanding.
7. A download fee of 10.00 euros per picture shall be charged for the transmission of high resolution data. This download fee shall not be charged for direct download from the plainpicture online data base and actual use of the picture.
8. In addition to courier expenses, a 35.00 euro processing fee shall be charged for shipment of original image data (slide, negative).
9. A fee of 10% of the invoice amount (minimum: 25.00 euros) shall be charged for cancellation within fourteen (14) days of the invoice, a fee of 50% of the invoice amount (minimum: 25.00 euros) shall be charged for cancellation within thirty (30) days of issuance of the invoice.
F. Contractual Penalty, Claims for Damages
1. If the pictures are used, distorted or passed on without authorisation, if reprinting rights are passed on to third parties without authorisation, if reproductions and enlargements are made for the ordering party's archiving purposes and the same are passed on to third parties, a fee totalling twice the usual usage fee shall be charged subject to the assertion of claims for damages.
2. If the original slide or original negative is returned after the thirty-day gratuitous inspection period has expired, so-called blocking costs shall be charged for any pictures which were not used. Blocking costs shall also be charged if the customer has acquired rights of use and/or voiced the intention to use and failed to return the pictures within 90 days of receipt. Blocking costs are 1.00 euro per piece and day up to a maximum of 500 euros.
3. Liquidated damages shall be payable for damaged, destroyed or non-returned pictures. 250.00 euros shall be payable in damages for any damaged original slide or original negative which can still be used. 750.00 euros shall be payable in damages for the loss or destruction of the original slide or original negative. The Customer may, on a case-by-case basis, prove that actual damage is lower, if applicable. plainpicture shall not accept any substitute duplicates for damaged or lost master illustrations offered by the liable party.
4. By paying damages, the Client shall neither obtain property rights or rights of use concerning the pictures.
5. In case of downloads or other operations with plainpicture's online data base, the Customer shall bear the full risk. plainpicture shall under no circumstances become liable for damages concerning any damage which may be caused to the Customer's software or hardware.
6. If no model or property release is available to plainpicture concerning the pictures or if the Customer makes use of the pictures in any way not covered by these General Terms and Conditions, the Customer shall indemnify plainpicture and its executives and staff against any claims for damages, liabilities and costs which may arise from actual or threatened civil procedures, actions or court proceedings concerning use of the pictures by the customer and hold them harmless to the extent the essence of the actions concerned is the fact that a release was not granted or that the Customer used the pictures without authorisation.
G. Data Protection
The “consent according to data protection rules” informs the Customer about the nature, scope, duration and purpose of collection and processing of personal data and the right of the Customer to exclude use of the personal data by plainpicture for marketing purposes.
H. Copyright/ Specimen Copy
1. plainpicture expressly requests that an agency or copyright notice be included in such a way that there is no doubt about which picture it belongs to.
2. plainpicture must automatically and gratuitously be provided with two specimen copies of publications in print.
1. The law applicable in the Federal Republic of Germany shall be the governing law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention) shall not apply.
2. Hamburg shall be deemed to have been agreed upon as place of jurisdiction and performance.
3. No acts by plainpicture whatsoever may be interpreted as a waiver of a certain provision of these General Terms and Conditions unless plainpicture has expressly declared a written waiver. If plainpicture fails to safeguard its rights and obligations immediately and only safeguards them with a delay, this shall not be interpreted as a waiver of such rights and obligations. If plaintiff waives a right or remedy in an isolated case, this shall not be interpreted as a legal obstacle or a waiver of such right or remedy on another occasion.
4. Should one or several provisions of these General Terms and Conditions be or become ineffective or unenforceable in part or in whole, this shall not affect the validity of the remaining terms and conditions of the General Terms and Conditions.