Usage License Agreement – imageBROKER General Terms and Conditions (GTC)
The following standard terms and conditions constitute a legally valid agreement between yourself, the User or Licensee, and the picture agency imageBROKER, Klaus-Peter Wolf, BAvariafilmplatz 7, 82031 Grünwald, Germany (hereinafter referred to as “imageBROKER”).
These terms and conditions apply to all offers, deliveries and electronic transmissions made by imageBROKER and to the grant of licenses by imageBROKER for graphics, illustrations, photographic images, film or video material, audio products, visual presentations made using optical, electronic, digital or other means, including negatives, slides, film prints, printouts, original data files or reproductions thereof as well as image descriptions (hereinafter: the “Licensed Material”).
Before using the website, therefore, and before ordering, downloading or using Licensed Material, please read the following terms and conditions carefully. You can also download and print out these terms and conditions here as a PDF or text file.
This website and the Licensed Material offered may not be used without acceptance of these standard terms and conditions.
1. Conclusion of Contract
Upon registration via the website the User shall confirm his/her agreement with these standard terms and conditions. Otherwise the website may not be used. The downloading of Licensed Material is also deemed to be acceptance of these standard terms and conditions.
2. Data Privacy Protection
The User/Licensee declares his/her consent to the electronic storage, computer-processing and use for information purposes by imageBROKER of his/her personal data insofar as such data relates to the business relations with imageBROKER and is made available in the course of such relations.
3. Duty to Register
The User shall register using his/her own data and shall provide all information correctly and in full. Should a User enter into this contractual relationship (also) in the name of a third party (employer etc.), he/she shall indicate such third party when registering.
4. Contracting Partners
These standard terms and conditions as well as any other agreements apply to both the User and any third party (employer etc.) in whose name or by order of whom the User is acting. These terms and conditions shall continue to apply to all parties after such contractual relationship (employment relationship etc.) ends. In that case, however, an agent (employee etc.) shall not be entitled to continue using the Licensed Material; in particular, the agent shall not be entitled to copy Licensed Material and/or to use it at a different place of work.
If a User is acting in the name of a third party without sufficient authorization from that party, all agreements and terms shall be deemed to have been brought about with the User personally.
5. Reservation of Right to Amend
imageBROKER is entitled to amend these standard terms and conditions, prices and other terms at any time, without prior announcement. Any further access to and continued use of the website after such an amendment shall be deemed to be consent to such amended terms. The User/Licensee is responsible for obtaining information regularly about the current status of these terms and conditions and about current prices. The most recent update of these terms and conditions took place on 2015/09/11.
6. Divergent Terms and Conditions
Divergent terms and conditions of the User/Licensee or of third parties only apply in case of written confirmation issued by imageBROKER. Terms and conditions of the User/Licensee or of third parties to which reference is made on order forms, confirmation of delivery or the like or in own data files, computers, on the internet or on corresponding media, are hereby expressly rejected.
7. Divergent Agreements
These terms and conditions of contract constitute the comprehensive and sole basis for the delivery of Licensed Material and use thereof by the Licensee. This agreement revokes all previous contracts or agreements, no matter whether oral or written, whether customary in the trade or based on previous business practice. No act by imageBROKER may be understood as a waiver of the validity of a provision hereof unless such a declaration of waiver is issued expressly and in writing by an authorized representative.
B.1. General Provisions
1.1 Subject-Matter of Agreement
imageBROKER grants the Licensee a licence for use which as a matter of principle is a non-exclusive, inalienable and non-sublicensable right to use the Licensed Material selected by the User. The User shall be entitled to use the Licensed Material solely in accordance with these Terms and shall not receive any further rights beyond the use rights agreed hereunder or expressly in an individual case.
Licensing shall take place through acceptance of these terms and conditions and through payment in full of the licence fee invoiced. Prior to payment in full of the licence fee, the use rights shall only be deemed transferred if imageBROKER has in advance granted its express and written consent to use.
1.3 Third-Party Rights
As a matter of principle, exclusively the copyright use right for the relevant Licensed Material will be transferred, e.g. the photographic copyright for the relevant photographic work and the film copyright for the relevant film material.
As a matter of principle, the rights transferred shall not include a release for or consent to the use of persons, names, goods or trademarks, buildings, decoration or artistic presentations shown. This applies especially to the use of the Licensed Material in an advertising context. The User him-/herself is responsible for obtaining the permission and/or consent required from the relevant right holder for the planned use in this connection.
Insofar as Licensed Material showing persons bears the notice “model released,” declarations of consent (Model Release) are available on request, in which respect the names of the persons shown will be made unrecognizable in order to protect their privacy
Depictions of well-known persons may only be published editorially and provided the persons’ names are indicated; legitimate conflicting interests of the person(s) depicted in the sense of Sec. 23(2) of the German Act on the Protection of the Copyright in Works of Art and Photographs (KUG) shall be taken into account by the User.
Insofar as the existence and validity of a Release has not been confirmed in writing by imageBROKER, the User shall indemnify imageBROKER and hold it harmless against all claims made by third parties on the basis of the relevant use of the Licensed Material. If the User was informed erroneously by imageBROKER due to a mistake that a Release or consent to use exists for Licensed Material, although this is not the case, then the liability of imageBROKER shall be limited exclusively to the amount invoiced and paid for use of the relevant Licensed Material.
1.4 Secondary Rights; Exclusive Rights
imageBROKER expressly reserves the right to assign secondary rights to rights management societies. Clauses under which the exercise of further rights is excluded upon acceptance of a fee will not be recognized.
As a matter of principle, exclusive rights of use are not granted through the licence. Exclusive rights have to be requested upon the acquisition of use rights and have to be expressly granted in the licence.
1.5 Copyright Notice
With reference to Sec. 13 of the German Copyright Act (UrhG), an agency or copyright notice shall be affixed for each use, in a manner that leaves no doubt as to attribution to the relevant Licensed Material. Collective notices are only sufficient in this sense provided that they permit attribution to the relevant Licensed Material which leaves no doubts. The copyright notice may be waived against payment of a higher fee.
These provisions apply expressly also to advertising, inserts in TV broadcasts and films or other media unless separate agreements were made expressly in writing.
1.6 Reservation of Title
The entire Licensed Material is protected under copyright law. Licensed Material delivered or transmitted electronically always remains the property of imageBROKER and/or its licensors, and will be made available solely for the acquisition of use rights in the sense of copyright law.
1.7 Right of Termination and Revocation; Cancellation Fee
Licences granted may be terminated with immediate effect by imageBROKER if the Licensee breaches these provisions, files a petition for the commencement of insolvency proceedings or has already been sued or contacted for copyright infringement owing to the relevant use. In that case the Licensee shall discontinue use of the Licensed Material without undue delay, return originals and copies provided to it to imageBROKER and shall delete or destroy all electronic copies.
If the planned publication or other use does not take place and is revoked in writing within 30 days of downloading of the Licensed Material, imageBROKER may at its discretion revoke the license accordingly and issue a credit voucher. The cancellation fee payable in this case amounts to 50% of the licence fee.
B.2 General Limitations on Disposal and Use
2.1 Press Code
The User shall comply with the journalistic principles of the German Press Council (Press Code). The User and/or the party ordering bears the responsibility for labelling.
2.2 Distortion, Modifications, etc.
Distortion of works protected by copyright that are contained in the Licensed Material by way of copy-drawing, re-photographing, photo-composing or other electronic aids is not permitted. Exceptions from the above require a separate written agreement.
Inappropriate use and falsifications/modifications of images and words as well as use which could lead to the disparagement of persons shown or which establish a pornographic, defamatory, slanderous or otherwise unlawful or immoral connection are unlawful and render the User/Licensee liable for damages; in addition, in such a case the User/Licensee shall indemnify imageBROKER against any claims made by persons harmed and/or by other third parties.
imageBROKER assumes no liability for an infringement of the general rights of privacy of persons shown or of the copyright of the authors of the Licensed Material that is caused by use in an image and/or text that is contrary to the agreements or distortional. In case of an infringement of such rights, the User alone shall be liable in relation to third parties and shall indemnify imageBROKER against claims of this kind.
The digital watermark on a data file and all other identification marks, properties and elements of the data file and its presentation may not be manipulated, obliterated or removed. The User shall ensure with regard to all Licensed Material provided under a licence that such material is used exclusively together with the copyright symbol, the name “imageBROKER” and the imageBROKER ID number as part of the electronic data file name.
2.3 Unauthorized Reproduction or Passing On
The passing on of the Licensed Material and of use rights to third parties is not permitted. Likewise, copies, reproductions and enlargements for archiving purposes of the ordering party as well as the passing on thereof to third parties are not permitted. Exceptions are subject to the written authorization of imageBROKER.
2.4 Individual Manners of Use
In particular, subject to the express and written consent of imageBROKER, the Licensee is not permitted:
- to license, transfer and/or sell the rights granted to him/her to third parties, or to incorporate the Licensed Material into an electronic template intended for use by third parties on electronic media or printed material, e.g. design templates for web pages, presentation templates, electronic greeting cards and business cards;
- to incorporate Licensed Material into a logo, a picture mark or other trademark;
- to distribute or make available Licensed Material in a downloadable format, or to enable distribution via mobile telephones;
- to store Licensed Material on a server, in an image library or a network or similar system in order to enable employees or customers to preview it insofar as more than ten (10) persons have access to the Material, also at different times;
- to sell, license or distribute any products made using the Licensed Material in a form which enables end customers of the Licensee to access or select images as individual data files.
3 Separate Provisions on Rights Managed Licensed Material (RM)
3.1 Specification of Manner of Use
At the time the invoice is issued, insofar as possible however at the time the Licensed Material is ordered, the Licensee shall indicate the manner, scope and language area of the intended use and, in case of the licensing of rights managed (RM) Licensed Material, the name of the end user. imageBROKER shall declare its consent to the use of the Licensed Material provided, in accordance with the information provided by the Licensee.
If the information provided by the Licensee does not correspond with the actual manner of use or if the actual use does not correspond with the information provided, then the consent to use shall be deemed to have been refused. In that case imageBROKER shall be indemnified against claims for damages made by third parties. The same applies if the personal data of the User is not provided truthfully.
3.2 Period and Purpose of Use
The rights granted in each case for the use of RM Licensed Material apply solely to use on one occasion in the agreed scope. Repetitions or other expansions (purpose, manner, scope, duration and area of dissemination) of the use rights originally granted are again subject to remuneration and are permitted solely with the prior written consent of imageBROKER.
The use of the Licensed Material for advertising measures or presentations is only permitted if such use is expressly granted in the licence.
3.3 Complimentary Copies
Prior to any publication in print at least 2 full complimentary copies shall be provided to imageBROKER unrequested and free of charge, in accordance with Sec. 25 of the German Publishing Law (VerlagsG).
B. 4 Separate Provisions on Royalty-Free (RF) Licensed Material
imageBROKER grants the worldwide, non-exclusive and inalienable right that is unlimited in time, to use royalty-free (RF) Licensed Material of the relevant CD or individually downloaded RF Licensed Material for the following purposes:
a) for all printed matter including advertising and promotion materials (e.g. brochures, advertisements, advertising displays, CD covers, graphic designs), editorial publications and advertising for end users;
b) for all digital and electronic media insofar as the resolution does not exceed 72 dpi;
c) for the resale of certain products insofar as series produced without an additional licence are not in excess of 10,000 items;
d) for other use authorized in writing by imageBROKER.
4.2 Particular Restrictions on Use for RF Licensed Material
However, the resulting products shall not be intended to enable or allow the resale or renewed use of the Licensed Material.
Furthermore, the permitted use of downloaded Licensed Material or of aquired CDs is expressly restricted to use for the product(s) of an individual end customer (company or person). The customer shall be identified by name and address. The forwarding of Licensed Material and the assignment or grant of use rights to third parties is not permitted.
Where a CD or other data carrier is acquired, the “End-User License Agreements” (EULA) of the manufacturer as amended at any time that are printed or otherwise affixed also apply. If there are provisions diverging from these Terms, the more restricted grant of use rights in each case shall apply.
C. Warranty, Liability
imageBROKER warrants for a period of 30 days as of delivery that the Licensed Material delivered or provided electronically is free of material defects and processing defects.
2. Rectification of Defects
In case of justified complaints, the Licensee is entitled to delivery of a replacement. The Licensee may only withdraw from the agreement and claim repayment of the licence fee after such rectification of defects has failed.
3. Examination Obligation
The User/Licensee shall examine the Licensed Material delivered or provided electronically without undue delay after receipt and prior to any further use thereof.
Justified complaints shall be notified within one (1) week after receipt of the Licensed Material by the Licensee and, if so required by imageBROKER, in writing within a further week. Justified complaints concerning any hidden defects shall be notified in writing within ten (10) working days of their discovery. Failure to provide notification in due time shall result in the lapse of any liability on the part of imageBROKER for any damage already incurred or arising.
4. Limitation on Warranty
imageBROKER assumes no further warranty whatsoever, either express or implied, and excludes any warranty whatsoever for the economic exploitability, quality and suitability of the Licensed Material for certain purposes of use and for its compatibility with computers and other technical devices. Apart from this, imageBROKER is only liable for damage caused by intent or gross negligence. In relation to businessmen in the sense of Sec. 1 of the German Act on Trade Law (HGB), liability for gross negligence is also excluded.
5. Restriction of Liability in Case of Exclusive Licence
If Licensed Material for which an exclusive licence was granted is made available for a different purpose conflicting with its exclusive use, owing to circumstances for which imageBROKER can be held responsible, then the liability of imageBROKER shall be limited to the amount of the fee charged and paid for use of the relevant Licensed Material.
The online products or website(s) of imageBROKER can contain links to other websites, the contents and functions of which are not determined by imageBROKER. imageBROKER expressly excludes any liability whatsoever for the contents and functions of such websites and for any losses sustained through the use of such websites. When using such websites, the User waives any claims whatsoever against imageBROKER.
7. General Release From Liability; User’s/Licensee’s Liability
The User/Licensee undertakes to indemnify imageBROKER and its affiliates, partner agencies, distributors and licensors against all outstanding amounts, claims, costs and expenses, including necessary lawyers’ and court costs, which arise owing to the Licensee’s failure to comply with the terms of this Agreement, owing to the use or modification of works contained in the Licensed Material or the joining or combination of such works with other material in breach of agreements.
In case of unauthorized use, distortion or passing on of the Licensed Material delivered or transmitted electronically, the unauthorized grant of rights to third parties or the unauthorized making of copies, reproductions and/or enlargements for archiving purposes of the Licensee as well as communication thereof to third parties, notwithstanding the assertion of further claims for damages by imageBROKER, the Licensee undertakes to pay a lump sum in damages amounting to five times the customary fee for use. The Licensee is at liberty to prove a lower amount of damage.
In the event of failure to comply with the provision on identification in Clause B.1.5. of this Agreement, imageBROKER has a claim for damages in the form of a 100% mark-up on the relevant fee for use in any case. The Licensee shall indemnify imageBROKER against third-party claims resulting from failure to provide an adequate copyright notice.
By paying damages the User/Licensee shall not acquire ownership or other rights to the Licensed Material of the agency.
1. Fees Payable
Fees are payable for each and any use of the Licensed Material, with the exception of use for internal layout purposes during the project phase.
Use also includes any printed or digital reproduction as well as use of the Licensed Material in whole or in part (excerpts) as a template for drawings, caricatures, re-enacted photos, customer presentations as well as the use of image details that become an integral part of a new image by means of photomontage, photo-composing, image processing or similar techniques.
2. Licence Fees
The amount of the licence fee invoiced by imageBROKER for use of the Licensed Material depends on the manner of use.
Exclusive rights and lock-up periods have to be separately agreed and result in a mark-up of at least 100% on the relevant basic licence fee.
Processing and information fees depending on the nature and extent of the effort required are payable for the procurement of outside material and information. Such fees cannot be set off against any licence fees. Payment of such processing fees does not grant the ordering party any rights of use or ownership.
Fees for the use of RM Licensed Material depend on the medium, manner, scope, territory and duration of the use. If the Licensee fails to enquire about fees in advance or if an agreement on fees is not concluded, imageBROKER is entitled to charge fees according to the rates in force. In the absence of an applicable fee rate for use made, such use shall be charged according to customary fees on the market provided by the association “Mittelstandsgemeinschaft Foto-Marketing” (MFM). If the Licensee provides incomplete information about the applicable criteria for use, imageBROKER is entitled to charge a flat-rate fee. Agreed fees apply exclusively to use on one single occasion.
Fees for RF Licensed Material depend on the price list of imageBROKER in force at any time.
3. Due Date; Invoice
As soon as the Licensee has provided notification that it intends to use the Licensed Material provided in whole or in part, imageBROKER is entitled to issue an invoice for the grant of a licence even if publication or other use has not yet taken place. Should the planned publication or other use not take place subsequently, a fee already paid cannot be reimbursed.
Invoices are always payable immediately. All fees indicated in offers, price lists and other documents are net amounts that are subject to statutory VAT and a levy for the artists’ social insurance (Künstlersozialkasse).
A fee of EUR 20 will be charged for rewriting of an invoice at the request of the recipient. Such rewriting is solely for the purpose of simplifying administration. Such rewriting shall not release the original recipient of the invoice from its payment obligation in the legal sense.
4. Information to be Provided Upon Payment
All payments for the licensing of RM Licensed Material have to indicate the customer number and the invoice number. In the absence of an invoice number, the invoice also has to specify which work contained in the Licensed Material (indicating the relevant work number) was used precisely where in which publication. In the absence of such information imageBROKER is entitled to charge additional amounts for expenditure, depending on the scope of the expenditure that arises.
E. Website and Online Database
1. Use, Registration
imageBROKER enables Users/Licensees to access internet products and one or more online databases. The use of all functions requires activation following registration; there is no activation obligation. In particular, imageBROKER is entitled to temporarily or permanently block access granted.
2. Access Data
The User/Licensee will receive a customer number and an individual password following activation. The passwords shall be treated confidentially and not disclosed to third parties. The User/Licensee is liable for all damage caused by abuse of the access data for which he/she is responsible.
Access and research are free of charge. For all other matters the terms of this Agreement apply.
4. Availability; Warranty
There is no claim for permanent availability or accessibility of the online products. Liability of imageBROKER for damage caused by a disturbance in or lack of availability of the online products is excluded in accordance with the provision in Clause 3.4 hereof.
F. Final Provisions
1. Applicable Law
This Agreement is governed by the laws of the Federal Republic of Germany to the exclusion of the UN CISG, also where deliveries to foreign countries are concerned.
2. Place of Jurisdiction; Place of Performance
Exclusive place of jurisdiction and place of performance is, insofar as permitted by law, Munich, Germany. Notwithstanding the above, imageBROKER is also entitled to initiate all requisite legal steps or proceedings before a foreign court with statutory jurisdiction if in the opinion of imageBROKER such a mode of procedure is necessary or desirable.
3. Safeguard Clause
Should one or more of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions hereof. An invalid provision shall be replaced in good faith by an admissible or valid provision which comes closest to the intent of the parties or the intended financial outcome.
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