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THE "SMALL PRINT"
GENERAL TERMS AND CONDITIONS
I. PREAMBLE
1. The following general terms and conditions (referred to hereinafter as „conditions”) constitute a legally binding contract between you and
Westend61 GmbH
Pestalozzistr. 13, 80336 Munich, Germany
(referred to hereinafter as „Westend61“)
They apply to all offers, deliveries, electronic transmission, and the granting of user rights for photographs, illustrations, videos and other works (referred to hereinafter as „content”) by Westend61. Therefore, please read the following conditions carefully prior to using the website and before ordering or downloading content.
2. Your agreement with these conditions is confirmed by your registration via this website. Should you not accept these conditions, you are not permitted to use this website.
3. Westend61 reserves the right to alter or modify these conditions at any time without prior notice, if such modifications, taking the legitimate interests of Westend61 into consideration, are reasonable for the person placing the order, i.e. the license holder. The right to alter or modify does not apply to essential provisions of the contractual relationship, in particular kind or extend of the mutually agreed obligations.
Continued access and use of the website after such modification are deemed as agreement to the new conditions. It is the responsibility of the person placing the order, i.e. the license holder to regularly inform him/herself of the current status of these conditions. These conditions were last updated on the 4th of May 2022.
4. Differing terms and conditions of the purchaser, i.e. the license holder apply only in the event that written agreement is provided by Westend61. Any license holder's general conditions of business and delivery on the order form, confirmation of order or other documents are herewith expressly negated.
II. SUBJECT OF THE AGREEMENT
1. Westend61 generally grants to the license holder a non-exclusive, non-transferable license for use of the delivered or electronically transmitted content. The license holder is only entitled to use the content in accordance with these conditions and is granted no rights other than those specified here or in an explicit individual agreement.
2. All content is protected by copyright. Delivered or electronically transmitted content remains the property of Westend61 and/or its licensors/content providers and are made available exclusively for the acquisition of user rights according to copyright law.
III. USER RIGHTS (LICENSES)
1. General Provisions
1.1 The licensing becomes effective with the acceptance of these conditions and payment of the invoiced charges. The natural or legal entity whose name and address is provided on the order receives, on fulfilment of the requirements mentioned in this agreement, the non-exclusive and non-transferrable right to use the content, which is subjected to the limitations detailed in this agreement. It is not permitted to use material, information or other content on this website without a valid license.
1.2 When placing the order (licensing the content), the license holder must provide detailed and truthful information, as indicated during the order process or as requested by Westend61. Westend61 declares its agreement to the use of the delivered content in accordance with the information provided by the license holder. Should the details provided by the license holder not match the license purchased, the license is deemed to be not granted. In this case, the license holder must indemnify Westend61 from any third party's claims and must pay the full license fee matching the use. Westend61 reserves the right to charge an extra fee, at its own discretion, for correcting the license for the licensee afterwards.
1.3 Only user rights regarding the photographic and videographic copyright are granted for the respective content. Any approval or authorization to the use of portrayed persons, names, brand names or trademarks, buildings, decoration and artistic designs are not included. This applies especially for commercial uses. The license holder is responsible for procurement of the necessary permission or authorization associated with the planned use from the respective person or authority. In deviation from the above, the following applies: Insofar as content on the Westend61 website is marked with the addition "Model Release: Yes" or "Property Release: Yes", corresponding release or consent declarations (Model or Property Releases) exist and can be made available to the customer upon request in compliance with the statutory provisions. In these cases, the corresponsing release or consent is thus included in the license granted. The publication of pictures of celebrities must be accompanied by their names and is only permitted in an editorial context.
1.4 Westend61 expressly reserves the right to the transfer of secondary rights on collection societies. Clauses according to which the acceptance of a licensing fee is deemed to exclude further rights are expressly negated.
1.5 In accordance with Section 13 of the German Copyright Act (UrhG), every use must be accompanied by an agency and copyright notation and has to be unambiguously associated with the respective content. Collective notations are adequate in this context only if they also allow no doubt of their relation to the respective content. The license holder must indemnify Westend61 from any liability or third parties´ claims arising from the failure to provide adequate copyright notation. This clause also applies on the display of the content in television broadcasts, films or other media unless expressly agreed to in an explicit written individual agreement.
1.6 For every editorial publication in a printed medium, at least two complete specimen copies must be forwarded, unrequested and free of charge, to Westend61 in accordance with Section 25 of the German publishing Act (VerlagsG).
2. General Reservation of Rights
2.1 The license holder is obligated to observe the publishing principles of the German Press (Press codex), and is responsible for the accompanying text. Westend61 accepts no liability for any breach of the general privacy or copyright laws resulting from a composition of image(s), video(s) and text that is misleading or distorts the context of the content. In case of a breach of this obligation, the user bears sole liability towards any third party claims for compensation and is also obligated to indemnify Westend61 from liability for any claims of this nature.
2.2 Any Editing/Retouching of the content before use is permitted, provided that this is within the scope of what is customary in the industry (in particular cropping, cut out, etc.). However, editing that distorts the content in the sense of copyright law, leads to an act of reproduction (such as copying, rephotographing or refilming) or leads to the disparagement of persons depicted (see 2.5 below) is not permitted. In case of doubt, the user must contact Westend61 to obtain express consent.
2.3 It is not permitted to transfer the content or rights to a third party. Duplication, reproduction and enlargement by the user for archiving purposes and the transfer of such to third parties are also not permitted. Exceptions require consent from Westend61.
2.4 In particular, the License holder is not permitted to engage in the following without express written consent from von Westend61:
2.5 Any and all licensed content, in particular content depicting persons, may not be used in a way that is or could be deemed as pornographic, defamatory or illegal in any kind. In particular, it is not permissible to use content in a manner that is inconsistent with the prevailing tendencies, to falsify content or words, or to use content in a manner that could lead to the disparagement or inaccurate perception of the persons depicted. This includes, in particular, uses in the context of addictive substances (e.g. alcohol and tobacco), medical products or diseases or the sexual, political or religious orientation of the persons depicted. In case of doubt, the user must contact Westend61 to obtain express consent.
3. Licenses for Royalty Free Content
Licenses for Royalty Free content are granted for an unlimited period. Under consideration of the limitations specified in sections III.1. and III.2. of this agreement and under consideration of the limitations specified by the respective license level bought, a licensed RF content can be used widely.
4. Termination and Revocation of Licenses
Licenses granted by Westend61 can be terminated with immediate effect in case of any breach of the provisions of this agreement by license holder, either if the breach is not terminated within a reasonable time following a respective notice by Westend61 or if such a notice is unacceptable for Westend61. In this case, the license holder must cease using the content without delay, return any original and copies to Westend61 and delete or destroy all electronic copies.
IV. FEES
1. General Provisions
1.1 Every use of the content from Westend61 is subject to a fee. This also applies to the use of the content as a template for drawings, caricatures, replicated photos, for layout purposes and customer presentations and the use of content detail(s) in recomposition, photocomposing, electronic image or video carriers or similar techniques that make them a component of a new image or video.
1.2 All fees specified in offers, price lists and other documents are net amounts; they do not include VAT or social security contributions for artists (Künstlersozialversicherungsabgabe).
1.3 License fees for using Royalty Free (RF) content are subject to the respective Westend61 price list.
1.4 Exclusive rights or any blocking period require a separate agreement and are subject to an additional fee amounting to at least 100 percent of the basic fee.
1.5 The payment of fees must always be accompanied by the customer number, image or video number (image or video code) and the name of the copyright holder. Should this information not be provided, an additional administrative fee will be charged calculated on the basis of the additional expenditure of time required.
1.6 A procurement and information fee is charged for the procurement of material and information from third parties. This fee is based on the nature and amount of effort involved and does not include any form of license fee. The payment of this administrative fee does not entitle the person placing the order to any user or ownership rights.
V. LIABILITY OF THE LICENSE HOLDER
1. In the event of unauthorized use, distortion or transfer of the delivered or electronic content, the unauthorized licensing to third parties and the unauthorized reproduction of copies and/or enlargements by the license holder for archive purposes or their transfer to a third party, the license holder agrees to the payment of a fixed compensation of the fivefold of the usual license fee. This payment does not prejudice further claims for compensation. The license holder is free to prove that the damage was of a lesser amount.
2. The license holder is obligated to indemnify Westend61 and its licensors/content providers against all claims, demands, costs and expenditure of third parties, including any necessary lawyer or court costs that arise from the license holder's breach of the provisions of this Agreement, the use or alteration of content or the unauthorized combination of content with other material.
VI. GUARANTEE, WARRANTY
1. In the case of a justified complaint, the license holder has the right to a replacement delivery. The license holder can only withdraw from the agreement and claim a refund of the fees in case of failure of the replacement. Westend61 accepts no further liability and provides no further guarantee either explicitly or implicitly, and particularly excludes any guarantee for the commercial suitability, quality, or appropriateness of the content for a specific use or their compatibility with computers or other technical equipment. Further, Westend61 only accepts liability for damages that result from intent or gross negligence. This exclusion does not apply for damages arising from injuries to life, body or health.
2. The license holder is obligated to check the delivered or electronically transmitted content without delay following their receipt and prior to any form of usage. Complaints must be made within one week following the license holder's receipt of the content and if requested by Westend61, the complaint must be made within a further week following receipt of the content. Justified complaints regarding any concealed defect must be made in writing within ten workdays of their discovery. Failure to provide notification within these deadlines releases Westend61 from all liability for any damage that has occurred or may occur in the future. This does not include damages that result from intent or gross negligence. This exclusion does not apply for damages arising from injuries to life, body or health.
3. Neither Westend61 nor its licensors/content providers or authorized dealers are liable towards the license holder, their customers or any other third party for any general, special, direct, indirect, consequential, incidental, or other damages arising from this license, any use of the content, or any other source. This exclusion does not include damages that result from intent or gross negligence.
VII. TERMS OF PAYMENT, MISCELLANEOUS
1. The invoices of Westend61 are always payable in net within 30 days. Following expiry of this period, Westend61 will charge an interest of 8% points above the basic interest rate according to Section 288, Subsection 2 of the German Civil Code (BGB).
2. The license holder agrees that his/her personal data, given that they relate to the business relationship with Westend61 and are made available in the course of this relationship, can be stored and electronically processed by Westend61 and used for information purposes.
3. This agreement, including deliveries made abroad, is governed by the law of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods. To the extent that this is legally permissible, the exclusive place and court of jurisdiction is Munich, Germany.
4. Should one or more of these provisions be or become invalid or unenforceable, this does not affect the validity of the remaining provisions. The invalid or unenforceable provision is to be replaced, in good faith, with an enforceable or valid provision that is closest to the intention of the parties or its intended economic objective.
Should you wish to use content in any manner other than those stipulated in these general terms and conditions, please contact us under sales@westend61.de or by phone under +49 (0) 89 4524426-0.
END USER LICENSE AGREEMENT
This text provides notes and substantiations of the currently applicable Terms & Conditions of Westend61 which can be viewed here. In the case that the following guidelines contradict the currently applicable Terms & Conditions in any way, the respective provisions of the Terms & Conditions shall prevail.
The following guidelines explain how you can use photos, illustrations, vectors and video clips (individually and collectively, “content”) that you license from Westend61.
I. WHAT TYPES OF LICENCES DOES WESTEND61 OFFER?
Westend61 offers its products through the Royalta Free (RF) license model. Royalty-free does not mean there is no cost for the licence. Instead, royalty-free means that the licence fee is paid once and there is no need to pay additional royalties if the content is reused. Royalty-free content is licensed for nearly unlimited, perpetual use, and pricing is based in particular on the file size, number of workstations which can access the content and the desired print run.
II. HOW CAN I USE LICENSED CONTENT?
For purposes of this agreement, “use” means to copy, reproduce, modify, edit, synchronise, perform, display, broadcast, publish, or otherwise make use of. You may use licensed content in any way consistent with the currently applicable Terms & Conditions of Westend61 and rights granted below.
1. Royalty-Free
Perpetual, meaning there is no expiry or end date on your rights to use the content. Worldwide, meaning content can be used in any geographic territory. Widely unlimited, meaning content can be used an unlimited number of times (please pay attention to limitations on the number of workstations within your desired license). Any and all media, meaning content can be used in print (please pay attention to print run limitations within your desired license), in digital or in any other medium or format. Non-exclusive, meaning that you do not have exclusive rights to use the content. Westend61 can license the same content to other customers. If you would like exclusive rights to use royalty-free content, please contact Westend61.
In particular, Royalty Free content may be used as follows:
a) Web License
Content licensed under the Web License may be used by any number of people within the licensee's company, or contracted agencies. It should be noted that the Web License may only be used within one company/brand and may not be used by any sub-companies, subsidiaries, parent companies or umbrella brands.
b) Standard License
Content licensed under the Standard License may be used by any number of persons within the Licensee's company, or contracted agencies. It should be noted that the Standard License may only be used within one company/brand and may not be used by any sub-companies, subsidiaries, parent companies or umbrella brands. If the content licensed under the Standard License is used for any print publication, a maximum print run of 500,000 is allowed. In addition, use of licensed content in film and television is permitted under the Standard License.
c) Unlimited License
Content licensed under the Unlimited License may be used by any number of persons within the licensee's company or commissioned agencies. The Unlimited license may also be used within a company/brand and by any sub-companies, subsidiaries, parent companies or umbrella brands. If the content licensed under the Unlimited License is used for any print publication, the print run is unlimited. Within the Unlimited License, a database license is included, (commercial) products for resale are allowed to be printed, produced and sold and the use of the licensed content in film and television is permitted.
d) Market Freeze
If, on top of the purchased license, the option "Market Freeze" (exclusive use of content) is bought, the content will be blocked from further licensing (and hidden on the Westend61 website) from the start day of the agreed Market Freeze until the end of the agreed duration. This means that no other customers can license the content during the agreed time period. Potential licenses bought by other customers before the Market Freeze time period will remain valid and content can still be used by those customers under their license purchased.
III. RESTRICTED USES
1. NO UNLAWFUL OR SENSITIVE USE
You may not use content in a pornographic, defamatory or other unlawful manner. This applies in particular to uses in sensitive contexts (especially addictive substances (e.g. alcohol and tobacco), medical products or diseases, or the sexual, political or religious orientation of the persons depicted). In case content is intended to be used for sensitive purposes, under no circumstances must the content be used in a way that suggests the depicted model(s) share(s) the stated point of view, support(s) the respective institution or product or are otherwise related or supportive of or tolerant to the message/party/product/service shown. In case content with recognizable models is used for sensitive purposes, you must indicate: (1) that the content is being used for illustrative purposes only, and (2) any person depicted in the content is a model. For example, you could say: “Stock photo. Posed by model.” or "Symbolic picture."
If you are interested in using content with recognizable models for sensitive purposes without the above indication, please contact Westend61 prior to your license purchase for express consent.
2. NO STANDALONE FILE USE
You may not use content in any way that allows others to download, extract or redistribute content as a standalone file (meaning just the content file itself, separate from the project or end use).
IV. RESTRICTED USES - UNLESS ADDITIONAL LICENCE PURCHASED
The following are prohibited without the prior written consent of Westend61 and payment of an additional licence fee:
1. No “On Demand” Products
Unless you purchase a customised licence, you may not use content in connection with "on demand" products (e.g., products in which a licensed image or video is selected by a third party for customisation of such product on a made-to-order basis), including, without limitation, postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers on mobile telephones, or similar items.
2. No Electronic Templates
Unless you purchase a custom licence, you may not use content in electronic or digital templates intended for resale or other distribution (for example, website templates, business card templates, electronic greeting card templates, and brochure design templates).
3. No Use in Trademark or Logo
Unless you purchase a custom licence, you may not use content as part of a trademark, design mark, tradename, business name, service mark, or logo.
V. WHO, BESIDES ME, CAN USE THE LICENSED CONTENT?
The rights granted to you are non-transferable and non-sublicensable, meaning that you cannot transfer or sublicense them to anyone else. There are two exceptions:
1. Employer or client
If you are purchasing on behalf of your employer or client, then your employer or client can use the content. In that case, you represent and warrant that you have full legal authority to bind your employer or client to the terms of this agreement.
2. Seat/User Restrictions for RF Content
Please note that seat/user restrictions might apply for royalty-free content. You may store licensed royalty-free content in a digital library, network configuration or similar arrangement to allow the licensed royalty-free content to be viewed by your employees and clients, so long as there are no more than the under paragraph II of this document allowed users/workstations at any given time. At this moment, all Royalty Free licenses from Westend61 include unlimited seats/users.
VI. USER ACCOUNTS
You will be responsible for tracking all activity for each user account, and you agree to: (a) maintain the security of all passwords and usernames; (b) notify Westend61 immediately of any unauthorised use or other breach of security; and (c) accept all responsibility for activity that occurs under each user account. Westend61 reserves the right to monitor downloads and user activity to ensure compliance with the terms of this agreement. If Westend61 determines that you are in breach of this or any other term of this agreement, it may suspend access to your account and seek further legal remedies.
VII. INTELLECTUAL PROPERTY RIGHTS
1. Who owns the content?
All the licensed content is owned by either Westend61 or its content suppliers.
2. Do I need to include a photo or video credit?
As a principle, a photo or video credit has to be included with every use. The following credit has to be placed adjacent to the content or in production credits:
„[Photographer or Videographer Name]/[Collection Name]/Westend61“
For commercial uses, you can refrain from providing a respective photo or video credit based upon an individual agreement with Westend61.
VIII. TERMINATION/CANCELLATION/WITHDRAWAL
1. Termination
Westend61 may terminate this agreement with immediate effect at any time if you breach any of the provisions of an agreement with Westend61, either if the breach is not terminated within a reasonable time following a respective notice by Westend61 or if such a notice is unacceptable for Westend61, In that case you must immediately: cease using the content; delete or destroy any copies; and, if requested, confirm to Westend61 in writing that you have complied with these requirements.
2. Refunds/Cancellation
All requests for refunds/cancellations must be made in writing or using the cancellation function on the Westend61 website. Provided that the request is made within 7 days and the licensed content has not been used, Westend61 may cancel the relevant order and issue a full refund to your account or credit card. No credits or refunds are available for cancellation requests received more than 7 days from your receipt of content, or for research, lab, service or subscription fees, all of which are non-refundable. In the event of cancellation, your rights to use the content terminate, and you must delete or destroy any copies of the content.
IX. REPRESENTATIONS AND WARRANTIES
1. Warranty of Non-Infringement
For all licensed content, Westend61 warrants that your use of such content in accordance with this agreement and in the form delivered by Westend61 (that is, excluding any modifications, overlays or refocusing done by you) will not infringe on any copyrights or moral rights of the content owner/creator.
2. Warranty Disclaimer
Unless specifically warranted, Westend61 does not grant any right or make any warranty with regard to the use of names, people, trademarks, trade dress, logos, registered, unregistered or copyrighted audio, designs, works of art or architecture depicted or contained in the content. In such cases, you are solely responsible for determining whether release(s) is/are required in connection with your proposed use of the content, and you are solely responsible for obtaining such release(s). You acknowledge that no releases are generally obtained for content identified as “editorial,” and that some jurisdictions provide legal protection against a person’s image, video, likeness or property being used for commercial purposes when they have not provided a release.
3. No Other Warranties
Except as provided in this section above, the content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Westend61 does not represent or warrant that the content or its websites will meet your requirements or that use of the content or websites will be uninterrupted or error free.
X. INDEMNIFICATION/LIMITATION OF LIABILITY
1. Indemnification of Westend61 by you
You agree to defend, indemnify and hold harmless Westend61 and its parent, subsidiaries, affiliates and content suppliers, and each of their respective officers, directors and employees from all damages, liabilities and expenses (including reasonable outside legal fees) arising out of or in connection with (i) your use of any content outside the scope of this agreement; (ii) any breach or alleged breach by you (or anyone acting on your behalf) of any of the terms of this or any other agreement with Westend61; and (iii) your failure to obtain any required release for your use of content.
2. Limitation of Liability
Otherwise, Westend61 will only be liable for damages resulting from intent or gross negligence. Westend61 will not be liable to you or any other person or entity for any lost profits, punitive, special, indirect, consequential, incidental or other similar damages, costs or losses arising out of this agreement, even if Westend61 has been advised of the possibility of such damages, costs or losses, this provision does not apply to a liability for damages based on intent or gross negligence. The limitation of liability described in this paragraph does not apply to damages resulting from injury to life, body or health.
XI. GENERAL PROVISIONS
1. Assignment
This agreement is personal to you and is not assignable by you without Westend61 prior written consent. Westend61 may assign this agreement, without notice or consent, to any corporate affiliate or to any successor in interest, provided that such entity agrees to be bound by these terms.
2. Audit
Upon reasonable notice, you agree to provide to Westend61 sample copies of projects or end uses that contain licensed content, including by providing Westend61 with free of charge access to any pay-walled or otherwise restricted access website or platform where content is reproduced
3. Electronic storage
You agree to retain the copyright symbol, the name of Westend61, the content’s identification number and any other information or metadata that may be embedded in the electronic file containing the original content, and to maintain appropriate security to protect the content from unauthorized use by third parties. You may make one (1) copy of the content for back-up purposes on any purchase order sent by you, the terms of this agreement will apply.
4. Notice
All notices required to be sent to Westend61 under this agreement should be sent via email to service@westend61.de. All notices to you will be sent via email to the email set out in your account.
5. Taxes
You agree to pay and be responsible for any and all sales taxes, use taxes, value-added taxes, withholding taxes and duties imposed by any jurisdiction as a result of the licence granted to you, or of your use of the licensed content.
6. Interest on Overdue Invoices
The invoices of Westend61 are always payable in net within 30 days. Following expiry of this period, Westend61 will charge an interest of 8% points above the basic interest rate according to Section 288, Subsection 2 of the German Civil Code (BGB).
Otherwise we refer to the Terms & Conditions of Westend61 (par. VII.), in particular in respect of the provisions regarding place of jurisdiction and governing law.
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