General Terms and Conditions of Delivery and Business for the supply and electronic transmission of photographical material by pictureNEWS

1. General

1.1. The following General Terms and Conditions of Delivery and Business (hereinafter referred to as General Terms and Conditions) shall apply to all present and future orders, offers, supplies and services implemented by pictureNEWS, notwithstanding the absence of any express reference to them.
1.2. Opposing or diverging Terms and Conditions stipulated by the customer shall not be valid, even if pictureNEWS implements its services without reservation. Concerning certain legal questions, the legal regulations shall apply exclusively, unless otherwise expressly agreed by the parties or unless contained in the General Terms and Conditions.
1.3. The General Terms and Conditions shall solely apply to business relations with a business according to § 310 Abs. 1, § 14 of the German Civil Code (Bürgerliches Gesetzbuch).

2. Electronic Supply

2.1. If the ordered picture data record is delivered in improper condition, due to errors in the electronic transmission, the customer may download or receive the picture data record again. No additional charges will accrue.
2.2. Additional claims for damages are excluded, unless pictureNEWS caused the error by gross negligence or intention.

3. Conventional Supply (Mail)

3.1. If the customer chooses the conventional supply, the ordered photographic material shall be mailed to his stated address within three working days.
3.2. The customer shall pay shipping and handling. In particular, this shall apply to higher charges caused by the customer's request for a different shipping type, e.g. courier mail. In case of supplying original slides the customer must pay the additional insurance fee.
3.3. The customer must notify pictureNEWS about claims in connection with the supplied shipment within 3 days after the receipt. Otherwise the photographic material shall be deemed to have been received in proper condition, in conformance with the contract and as described.
3.4. The provided photographic material shall remain the property of pictureNEWS. The buyer must handle the photographic material with care.

4. Utilisation rights

4.1. Unless otherwise agreed, the customer shall acquire a simple utilisation right for single use of the photographic material for the purpose and medium declared by the customer.
4.2. The supply shall solely constitute the transferral of the photographic copyright. In particular, this shall apply to photographic material which is subject to additional copyright protections. The user shall be responsible for acquiring further copyrights and for obtaining third parties' publishing licences.
4.3. Any utilisation, storage, reproduction, transfer or other use beyond the stipulations contained in 4.1. requires prior explicit approval by pictureNEWS and is subject to additional fees. In particular, this shall apply to - secondary utilisation or publication, especially anthologies, product-related brochures, advertising campaigns or other reprints, - any storage or duplication 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 this transaction is only performed for the picture usage in accordance with 4.1., - any reproduction or usage of the picture data on CD-ROM, CDi, diskettes, or other data carriers, unless this transaction is only performed for the picture usage in accordance with 4.1., - any recording or reproduction of the picture data on the Internet, in online databases or in other electronic archives (this shall also apply to the customer's internal electronic archives), unless this transaction is only performed for the picture usage in accordance with 4.1., - any transfer of the photographic material or picture data to third parties, unless this transaction is only performed for the picture usage in accordance with 4.1., - any editing, modification or transformation of the picture, - any copying, photographing or other use of the picture as a motive.
4.4 The customer is not authorised to transfer the utilisation right granted to him to third parties, including other companies or subsidiaries.

5. Fees

5.1. If the customer orders pictures via the pictureNEWS website, he must pay the declared fees.
5.2. Fees not shown on the pictureNEWS website require prior explicit agreement. Failing this, the fee payable shall be determined in accordance to the guidelines of the photograph marketing association Mittelstandsgemeinschaft für Fotomarketing (MFM).
5.3. All fees shown shall only apply for the usage according to 4.1. Any further utilisation rights require prior explicit agreement. Failing this, the fee payable is determined by the current fees of pictureNEWS; if these fees do not include the usage beyond the stipulations contained in 4.1., the fee payable is determined in accordance to the guidelines of the of the photograph marketing association MFM.
5.4. The fee is payable within 3 weeks of the invoice date at the latest, even if the picture is not published. 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.

6. Publishing

6.1. The customer must note and obey the information belonging to the picture. He is obliged to observe the journalistic principles of the German Press Council (Deutscher Presserat). In particular, he must not publish trend-strange, fake and derogatory portraits of persons.
6.2. The user is fully responsible for the placement and the wording of any text accompanying the photographic material. PictureNEWS shall not be held liable for violation of the general personality law or copyright law resulting from erroneous or distorted use in pictures or wording. If these laws are violated, the user shall solely be responsible for compensation claims from third parties.
6.3. The publishing requires a copyright notice. This shall not apply to the use in public relations and advertising.
6.4. The customer must supply pictureNEWS with a voucher within four weeks from the publishing date.

7. Return of photographic material
7.1. Mailed photographic material shall be returned in the form in which it was supplied immediately after being published provided that this is no later than three months after the date of the delivery.
7.2. If at the customer's request or with its approval pictureNEWS supplies photographic or other material solely for the purpose of determining whether it is suitable for use or publication, the customer shall return or delete such photographic material no later than one month of receipt.
7.3. The customer shall return mailed photographic material at its own cost in standard packaging. The customer shall bear the risk of loss or damage during transport until the photographic material reaches.

8. Compensation for damages

If the picture information supplied by pictureNEWS or the allocation of the supplied picture information is erroneous, the customer is entitled to exercise his rights according to the legal regulations. However, PictureNEWS shall not be liable for any damages, that may result from improper picture information, unless the error is caused by gross negligence or intent of pictureNEWS or any of its assistants.

9. Penalty, blocking, damages

9.1. For each individual instance of unauthorised utilisation, storage, reproduction or transfer or other use of the photographic material, the customer shall be liable to pay a penalty equaling five times the applicable fee, which results from the guidelines of the of the photograph marketing association MFM, it being understood that this, shall not operate to restrict any other remedies available to pictureNEWS.
9.2. If the copyright notice is missing, incomplete, in the wrong position or not possible of being clearly allocated to the picture in question, a surcharge of 100,- Euro per effected picture may be claimed by pictureNEWS. If the publishing example has not been supplied within four weeks from the publishing date, the customer is obliged to pay a surcharge of 50,- Euro.
9.3. If the photographic material is not returned in time (blocking), the customer must pay the following penalty upon the expiry of the period provided for in 7 of the General Terms and Conditions or the period expressly agreed upon: - 0,30 Euro per day and picture in case of b/w or colour prints or duplicate slides - 1,- Euro per day and picture for slides, negative and other unique material. The maximum amount of the penalty is topped by the penalties according to 9.4.
9.4. If the photographic material is destroyed or lost, the following compensation shall be payable, it being understood that pictureNEWS is under no obligation to prove the actual value of loss: - 40,- Euro per b/w or colour print or KB duplicate slide - 130,- Euro per medium or large-format duplicate slide - 760,- Euro per original slide or negative or other unique material - 1.700,- Euro per non-reproducible slide or negative or other unique material.

In the case of damage, the above rates shall be reduced depending on the extent of damage and the possibility for continued use of the material. Either party shall be entitled to prove that actual loss is either greater or lower loss has been sustained. The customer shall not be held liable for any damages which occurred from no fault of his own or his assistants.

These payments shall not give rise to any rights of utilisation.

§ 10 Applicable Law, Court Venue, Place of Performance

1. These conditions shall be governed, and construed in accordance with, German law.
2. If the customer is a merchant who has been entered in the Commercial Register or if the customer has no German court venue , the place of performance and court venue shall be Frankfurt/Main.