1. The present General Terms and Conditions of Delivery and General Terms and Conditions of Business (hereinafter referred to as the present General Terms and Conditions) apply to all orders, offers, deliveries and services supplied by TIERFOTOAGENTUR.
2. They shall be deemed to have been agreed as soon as a delivery or service provided by TIERFOTOAGENTUR is accepted by the customer and shall at the latest be agreed at the point when picture material is accepted for publication.
3. Any objections to the present General Terms and Conditions on the part of the customer must be declared in writing within three working days. Divergent general terms and conditions of the customer are hereby excluded. Such divergent general terms and conditions of the customer shall not apply unless accepted in writing by TIERFOTOAGENTUR.
4. The present General Terms and Conditions also apply to all future orders, offers, deliveries and services supplied by TIERFOTOAGENTUR within the scope of an ongoing business relationship even if not expressly included.
II. Picture material supplied
1. The present General Terms and Conditions apply to all picture material supplied to the customer regardless of the status of production or technical form of said picture material supplied. They particularly also apply to electronic picture material and to picture material transmitted in digital form.
2. The customer accepts that picture material supplied by TIERFOTOAGENTUR is photographic work that is protected by copyright within the meaning of Section 2 Paragraph 1 Clause 5 of the German Copyright Act.
3. Design proposals or design concepts commissioned by the customer constitute separate services for which remuneration must be made.
4. Picture material supplied remains in the ownership of TIERFOTOAGENTUR even in circumstances where compensation is paid in respect of said picture material.
5. The customer shall exercise due care and attention in handling the picture material and may only pass picture material on to a third party for the purpose of inspection, selection and technical processing within the scope of internal business use.
6. Complaints regarding the content of deliveries or the quality or condition of the picture material must be submitted within 48 hours of receipt. The picture material shall otherwise be deemed to have been received in proper form, in accordance with the contractual arrangements and as recorded.
III. Rights of beneficial use
1. In all cases, the customer acquires a simple licence for a single right of beneficial use.
2. Exclusive rights of beneficial use, media-related rights of beneficial use, exclusive rights of beneficial use without limitation of space and retention periods must be the object of separate agreement and will entail a supplementary charge of at least 50% of the respective basic fee.
3. Delivery merely confers the right of beneficial use for a single use of the picture material for the purpose stated by the customer and in the publication or in the medium or data storage medium indicated by the customer or resulting from the circumstances of the placement of the order. In cases of doubt, the relevant object (newspaper, journal etc.) is the object for which the picture material has been provided according to the delivery note or shipping address.
4. Jede über Ziffer 3. hinausgehende Nutzung, Verwertung, Vervielfältigung, Verbreitung oder Veröffentlichung ist honorarpflichtig und bedarf der vorherigen ausdrücklichen Zustimmung der TIERFOTOAGENTUR
This particularly applies in the case of the following.
- Second exploitation or second publication, especially in edited volumes, product prospectuses, advertising materials or other reprints
- Any editing, amendment or rearrangement of the picture material
- Digitalisation, storage or duplication of the picture material on data storage media of any kind (e.g. magnetic, optical, magneto-optical or electronic storage media such as CD-ROM's, CD's, DVD's, floppy disks, hard drives, RAM, microfilm etc.) insofar as such digitalisation, storage or duplication is not merely for the purpose of the technical processing of the picture material pursuant to Section III Clause 3 above
- Any reproduction or use of the picture data on CD-ROM, CD, floppy disk or similar data storage media
- Any recording or playback of the picture data on the Internet, in online databases or in other electronic archives (including the customer's own internal electronic archives)
- The transfer of the digitalised picture material via remote data transmission or on data storage media that are suitable for public performance on screens or for the production of hard copies
5. Alterations to the picture material by means of photo-composing, montage or electronic tools for the purpose of creating a new work subject to copyright protection are only permitted with the prior written approval of TIERFOTOAGENTUR. Picture material may not be reproduced in a drawing, reconstructed or used as a motif in any other way.
6. Customers are not permitted to transfer the rights of beneficial use accorded to them to third parties either in whole or in part and are further not permitted to transfer such rights of beneficial use accorded to other group companies or subsidiaries.
7. Any use, playback or transfer of the picture material is only permitted under the condition that the copyright notice as stipulated by TIERFOTOAGENTUR is included with each respective picture and that copyright is thus clearly attributed.
IV. Copyright and voucher copy
1. With reference to Section 13 German Copyright Act, we expressly require the inclusion of an agency and copyright notice in such a way that permits no doubt as to the attribution of copyright to the respective picture. Collective references will only be deemed sufficient in this regard to the extent that such collective references also permit no doubt as to the attribution of copyright to the respective picture. The same applies to advertising and to placements in television programmes, films or other media insofar as no express special agreement has been made.
2. Insofar as nothing to the contrary is stated, any exploitation of our picture material is subject to the provisions contained within the German Copyright Act.
3. Pursuant to Section 25 of the German Publishing Act, we shall be sent at least two complete voucher copies prior to any publication in print media. Said voucher copies shall be provided free of charge and without any requirement for a specific request by us.
TIERFOTOAGENTUR accepts no liability for a breach of the rights of persons or objects depicted unless a properly signed release form is attached. It is incumbent upon the customer to acquire any rights of beneficial use beyond photographic copyright and to obtain approval for publication at collections and museums etc. The customer bears the responsibility for any accompanying text copy included and further bears the responsibility for meanings and contexts arising from specific publication.
1. The agreed fee applies. In the event that no fee has been agreed, the fee shall be determined on the basis of the picture fee schedule as amended of the Photo Marketing Association of Small and Medium-Sized Businesses (MFM). The fee is subject to Value Added Tax at the relevant statutory rate.
2. The fee applies only to a single exploitation of the picture material for the purpose agreed pursuant to Section III Clause 3 above or Section 2 above. Any application of the fee to further exploitation shall be the object of written agreement.
3. Costs and expenditure incurred in connection will the order (e.g. costs of materials, laboratory costs, fees for models, costs of props required, travel costs, necessary expenses etc.) are not included in the fee and shall be borne by the customer.
4. The fee pursuant to Section IV Clause 1 above shall be payable in full even in circumstances where the picture material commissioned and supplied within the scope of the order is not published. No fee is incurred if pictures are used as a template for layout and presentation purposes.
5. The setting off of claims and the exercising of a right of retention are only permissible in circumstances where the claims of the customers are undisputed or established in law. The setting off of claims against disputed counterclaims in respect of which a ruling is anticipated is permitted.
VII. Return of the picture material
1. The analog picture material shall be returned as delivered without delay following publication or agreed use and shall in all cases be returned no later than 3 months after the date of delivery without any requirement for a specific request. Digital picture files shall be deleted. Two voucher copies shall be attached. Any extension of this 3-month deadline requires the written approval of TIERFOTOAGENTUR.
2. In the event that TIERFOTOAGENTUR acts upon a request of the customer or with the agreement of the customer in providing picture material for the purpose of checking whether exploitation or publication can be considered, the customer shall return or delete such picture material no later than one month after receipt insofar as no deadline to the contrary is indicated on the delivery note. Any extension of this deadline requires the written approval of TIERFOTOAGENTUR.
3. Return of the picture material shall take place at the expense of the customer using packaging normal in the trade. The customer shall bear the risk of loss or damage during transport until such time as the picture material is received by TIERFOTOAGENTUR.
VIII. Contractual penalty, compensation
1. In the event of any unauthorised exploitation, use, playback or transfer of the picture material (i.e. exploitation, use, playback or transfer that takes place without the approval of TIERFOTOAGENTUR), a contractual penalty in the amount of five times the fee for right of beneficial use shall be payable in each individual case. This shall be without prejudice to the right to assert further compensation claims.
2. A supplement of 100% of the fee for right of beneficial use shall be payable in the event of failure to include a copyright notice, failure to include a complete copyright notice, wrong placement of a copyright notice or placement of a copyright notice that does not permit copyright to be attributed.
3. A contractual penalty of 50% of the fee for right of beneficial use shall be payable in the event of failure to provide a voucher copy, settlement without providing a voucher copy or settlement without indication as to which picture has been used in which position in which publication.
IX. Final provisions
1. The invoice amount falls due within 14 days of the issuing of the invoice.
2. The parties agree that the present General Terms and Conditions are governed by the law of the Federal Republic of Germany. The law of the Federal Republic of Germany further applies to deliveries made abroad.
3. Side agreements to the contractual agreement or to the present General Terms and Conditions shall not be valid unless given in writing.
4. In the event that one or more of the provisions contained within the present General Terms and Conditions shall be void or invalid, this shall be without prejudice to the other provisions herein included. The parties shall to commit to replacing such an invalid provision by a similarly effective and valid provision that most closely reflects the business and legal intention pursued.
5. Place of fulfilment and jurisdiction is the place of the Registered Office of TIERFOTOAGENTUR insofar as the customer is a registered trader as defined under German law.