- Terms
of Business
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- I.
General
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- 1. The
subsequent General Terms and Conditions of Business shall apply to all
orders, quotations and supplies and services implemented by the photograph
and text agency nrwbild
2. They are
deemed to have been agreed following the customer's receipt of user's
supplies/services or quotation, in any case following acceptance of the
photographic material for publication at the latest.
3. In the
event that the customer intends to object to the General Terms and Conditions
of Business, he shall declare so in writing within three working days.
An objection is hereby made to diverging Terms and Conditions of Business
stipulated by the customer. Diverging Terms and Conditions of Business
stipulated by the customer shall not be valid unless approved in writing
by nrwbild.
4. Within
the framework of an ongoing business relationship the General Terms and
Conditions of Business shall also apply to all future orders, quotations
and supplies and services, without having to include them specifically.
II. Photographic
material surrendered for use
1. The General
Terms and Conditions of Business apply to all photographic material provided
to the customer, irrespective of its completion stage or available technical
format. The conditions shall apply especially to electronic or digitally
transmitted photographic material.
2. The customer
accepts that the photographic material supplied by nrwbild consists
of photographs in accordance with ¤ 2, Section 1, Clause 5 of the Copyright
Act.
3. Design
proposals or concepts commissioned by the customer are independent services
which must be remunerated separately.
4. The surrendered
photographic material remains nrwbild's property; the aforesaid shall
also apply in the case of compensation payments.
5. The customer
shall treat the photographic material with due care and may only pass
it on to third parties for internal business purposes, i.e. inspection,
selection and technical processing. 6. Complaints relating to the content
of the supplied items or the content, quality or state of the photographic
material, must be communicated within 48 hours of receipt. The photographic
material is otherwise deemed to have been delivered appropriately, in
accordance with the contract and as noted.
III. Rights
of utilisation
1. In principle,
the customer only acquires a non-exclusive license for single usage.
2. Exclusive
rights of utilisation, media-related or territorial exclusive rights or
blocking periods must be agreed separately and are subject to a minimum
surcharge of 100% on the relevant basic fee.
3. The delivery
only constitutes the transferral of the right of utilisation for the single
usage of the photographic material for the purpose specified by the customer
and in the publication, medium or data carrier which has been specified
by the customer or which results from the relevant circumstances under
which the order has been placed. If in doubt, the relevant object (newspaper,
magazine etc.) for which the photographic material has been provided in
accordance with the delivery docket or the dispatch address, shall be
decisive.
4. Any use,
utilisation, duplication, dissemination or publication beyond the stipulations
contained in Clause 3 is subject to payment and requires prior explicit
approval by nrwbild. In particular, this shall apply to - secondary
utilisation or publication, especially in anthologies, product-related
brochures, advertising campaigns or other reprints, - any editing, changing
or redesigning of the photographic material - the digitalisation, storage
or duplication of the photographic material on any type of data carrier
(e.g. magnetic, optic, magneto-optic or electronic carrier media such
as CD ROM, CDi, diskettes, hard drives, RAM, microfilm etc.) unless such
transactions are only performed for the technical processing of the photographic
material in accordance with Clause III,
3 of the General Terms and Conditions of Business, - any duplication or
utilisation of the picture data on CD ROM, CDi, diskettes or similar data
carriers; - any recording or reproduction of picture data on the Internet
or in online databases or in other electronic archives (this even applies
to the customer's internal electronic archives), - the disclosure of digitalised
photographic material within the scope of remote data transmission or
on data carriers which are suitable for public reproduction on screens
or for the creation of hard copies.
5. Changes
to the photographic material implemented by photo-composing or photomontage
or with electronic aids for the creation of a new copyrighted item are
only permitted with nrwbild's prior approval in writing and only if
such material is marked with [M]. Nor may the photographic material be
drawn, copied, photographed or otherwise used as a motive.
6. The customer
is not authorised to transfer the rights of utilisation granted to him
to third parties including other group companies or subsidiaries, either
in whole or in part.
7. Any utilisation,
reproduction or transfer of the photographic material shall only be permitted
with the proviso that nrwbild's copyright notice has been attached.
IV. Fees
1. The agreed
fee shall apply. In the event that no fee has been agreed, the relevant
work is governed by the current photograph fee guideline issued by the
Mittelstandsgemeinschaft Foto-Marketing (small business association for
photo marketing). The fee is subject to VAT at the statutory rate.
2. The fee
shall only be valid for the non-recurrent use of the photographic material
for the agreed purpose, in accordance with Clause III, 3 or 2 of the General
Terms and Conditions of Business. In the event that the fee is also to
include further use, this must be agreed separately.
3. Any costs
and expenditure incurred by the order (e.g. material and laboratory costs,
model fees, costs for required props, travel expenses, per diems etc.)
are not included in the fee and shall be at the customer's expense.
4. The fee
in accordance with IV. 1 of the General Terms and Conditions of Business
shall also be settled in full if the commissioned and supplied photographic
material is not published. If the photographs are used as a working model
for layout and presentation purposes, a minimum fee of DM 150 per photograph
shall be payable, except as otherwise agreed.
5. The fee
shall be paid within 3 weeks of the invoice date at the latest, unless
a shorter payment period is stipulated in the invoice. Following a reminder,
the customer is deemed to be in default. When default occurs, interest
of 10% p.a. shall be payable on this fee. Setoff of costs or the exercise
of the retention right shall only be permitted in the event that the relevant
claims brought forward by the customer are undisputed and recognised by
declaratory judgement.
V. Return
of the photographic material
1. The photographic
material must be returned in the form in which it was originally supplied,
without being asked to do so, immediately upon publication or the agreed
use, in any case within three months of the delivery date at the latest.
Two proofs must be attached. An extension of the three-month period requires
nrwbild's written approval.
2. In the
event that nrwbild surrenders photographic material to the customer
for test purposes only, at the customer's request or with his approval,
in order to determine whether utilisation or publication is desirable,
the customer shall return the photographic material within one month of
receipt at the latest, unless a different period is stipulated in the
delivery docket. This period may only be extended if confirmed by White
Star in writing.
3. The photographic
material shall be returned at the customer's expense and with the customary
packaging. The customer shall bear the risk of loss or damage during transport
until such time as the package has been received by nrwbild.
VI. Contractual
penalty, blocking, compensation
1. Each incident
of unauthorised use, utilisation, reproduction or transfer of the photographic
material (without nrwbild's approval) is subject to a contractual penalty
of five times the usage fee, subject to further claims for damages.
2. In the
event that the copyright notice is not included, incomplete, incorrectly
placed or non-allocable, a surcharge of 100% of the utilisation fee shall
be paid.
3. In the
event that the photographic material is not returned in good time (blocking),
the period after the expiry of the periods specified in Clause V.1 or
2, is subject to a contractual penalty amounting to - DM 0.50 per day
and picture for black & white or colour prints or slide duplicates - DM
2 per day and picture for slides, negatives or other unique copies
4. Damaged,
destroyed or lost photographic material is subject to compensation without
nrwbild having to furnish evidence of the amount of damage incurred,
where such damage amounts to: - DM 80 per black & white or colour print
or KB slide duplicate - DM 250 per medium or large format slide duplicate
- DM 1,500 per slide original, negative or other unique copy - DM 3,000
per non-reproducible slide, negative or other unique copy In the case
of damage, the above rates must be reduced in accordance with the relevant
extent of damage and the scope of remaining utilisation options. In principle,
both contracting parties reserve the right to furnish proof of more/less
damage.
5. In the
absence of a proof or when billing is implemented without a proof or when
billing is implemented without specifying which picture has been used
where and in which publication, a contractual penalty of 50% of the usage
fee is to be paid.
6. The payments
in accordance with Clause VI
do not substantiate any rights of use.
VII.
1. These
conditions are governed by German law, also in the event that deliveries
are effected abroad.
2. Ancillary
agreements to this contract or to these General Terms and Conditions of
Business must be implemented in writing in order to be effective.
3. In the
event that one or several stipulations of these General Terms and Conditions
of Business are void or ineffective, the validity of the remaining stipulations
shall not be affected. The parties are obliged to replace the invalid
stipulation with an analogous, effective regulation that corresponds as
far as possible to the intended regulation in terms of its economic and
legal effect.
4. The place
of performance and court venue shall be Berlin. General Terms and Conditions
of Business
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