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General Terms and Conditions of Business (Customer)
The following terms and condition shall apply to customers’ use of the on-line platform (“adpic Platform”) provided by adpic Bildagentur1, Inhaber2 Baumann & Haid GbR3, Fraunhofer Str. 8, 53121 Bonn (Germany) (“adpic”):
1 stock image agency
2 owner
3 unincorporated civil-law partnership
1. Definitions
The following terms are repeatedly used in the General Terms and Conditions of Business and are defined as follows:
- “Media Contents” means photographs, graphics and similar contents.
- “Media Author” means the owner of the rights to Media Contents offered for licensing by the respective owner using adpic.
- “Customer” means entrepreneurial individuals and legal entities purchasing or wishing to purchase licenses to the Media Contents using adpic.
- “User” means Media Authors and Customers.
- “License” means the granting of rights of use as offered pursuant to section “Scope of the License Offer” hereof.
2. Services of adpic, Availabilities
2.1 adpic provides the adpic Platform to its Users. It allows the Media Authors to offer their Media Contents to Customers for licensing and the Customers to accept such offer. The License contract is made between the Customer and the Media Author. Adpic provides the technical processing required for making available, preparing for search and delivering the Media Contents as well as the processing and collection of payments.
2.2 Access to the adpic Platform requires technical equipment such as an on-line connection, current browser software and the like. The provision of such equipment is not the subject matter of the contract with adpic.
2.3 adpic may restrict its services from time to time. In such cases adpic will meet the justified interests of the Users e.g. by providing advance information. adpic does not guarantee any defined availability of the adpic Platform.
3. Scope of the License Offer
3.1 The Media Author presents to the Customer the offer for the granting of a non-exclusive right of use unlimited in time and territory and in terms of the number of copies published and/or the retrieval volume, assignable one time only subject to the following terms and conditions and non-sublicenseable, to use the Media Contents for the purposes of advertisement, product information, information, illustration, promotion, training, knowledge transfer, editorial or other business purposes in any media, whatsoever, whether physical or virtual. The offer shall include in particular:
- the right to reproduce and distribute in print (e.g. books, leaflets, newspapers and magazines, letters);
- the right to reproduce and distribute via video and data media (e.g. CD, DVD, flash drives);
- the right to make the Media Contents available on the internet (e.g. on websites, in electronic documents, as well as presentations) up to a maximum dimension of 1024*1024 pixels;
- the right to perform, exhibit and broadcast (also as rebroadcast via cable or satellite broadcast) as well as for streaming from the internet or other webs;
- the right to combine the Media Contents with other works, including texts, other images, moving images and music, as well as having the Media Contents displayed by way of computer programs;
- the right to process and rearrange, especially the right to rearrange or otherwise process, personally or by third parties, as a whole or in part, the Media Contents or the processed Media Contents maintaining the protection of the author’s moral right, and to process the Media Contents in any other manner, whatsoever;
3.2 The Media Author offers some of the rights only under an extended License subject to a separate fee. These rights are expressly not included in the scope of the standard License:
- the right to use Media Contents for the purpose of merchandising, i.e. for or in connection with the manufacturing and distribution of goods (such as calendars, posters, postcards, mouse pads, household articles);
- the right to relicense the Media Contents in processed form or in combination with other contents relating to the subject matter of the Media Contents (e.g. for website templates, press releases).
3.3 The Customer’s right to use the Media Contents as if it were a stock image agency or using the services of a stock image agency is expressly neither offered nor granted.
3.4 adpic will prepare reduced previews (“Previews”) of the Media Contents. Already before and independent of a conclusion of contract the Media Author grants the Customer the right to use such Previews for the testing of layouts.
3.5 If and to the extent in which the Customer – e.g. as an agency, advertising agency, employee or core function of a group of companies – acts on its own behalf, yet instructed by third parties, the Customer is entitled to transfer the License to the respective third party one time only or to exercise the rights for the third party. Any relicensing by the third party is excluded.
3.6 The Customer is asked to name the Media Author and adpic in connection with the Media Content as far as reasonable (e.g. “adpic.de / Media Author”). The Media Author and adpic, however, waive their right to recognize the authorship to the Media Content as well as their right to access the Media Content.
3.7 The Media Author offers the licensing at the terms and conditions of the current price table. adpic may at its own discretion and taking into consideration the custom agree additional discounts or even higher prices for extended licenses. The Media Author instructs adpic to conduct the negotiations to this effect with the Customer.
3.8 The Media Author may revoke the right of use for good cause. Good cause exists especially if the Customer gets in default of payment or exceeds the rights of use it was granted. In the event of the Media Author’s revocation of the rights of use the Customer shall delete and/or destroy any and all originals and copies of the Media Contents. On the Media Author’s or adpic’s request the Customer shall confirm in writing that the destruction or deletion is complete.
3.9 The Media Contents licensed by the Customer may only be used for lawful purposes, but not for the following purposes:
- use for or in connection with pornographic purposes or other services or products with sexual content such as sex lines and chats, escort service, pornography, etc.);
- use for avatars, “false” or thought-up identities (e.g. in singles dating agencies);
- use for or in connection with glorification of violence and racial hatred or in conflict with the law for the protection of children and youth;
- registration or use as a trademark or as business mark or part thereof;
- use for distortion (e.g. exchanging heads on bodies) and/or vilification of depicted persons or the Media Author.
In cases of doubt adpic’s consent shall be obtained.
3.10 adpic does not guarantee that specific Media Contents (not yet licensed by the Customer) will be available on a permanent basis.
4. Accomplishment of the License Contract with Customers
4.1 Activating the button “confirm binding order” the Customer declares its acceptance of the License offer with the content set forth in section “Services of adpic, Availabilities” above and accepts these terms and conditions of contract.
4.2 The contract is accomplished upon adpic’s receipt of the statement. In this connection adpic acts as receiving agent. Subsequently adpic will inform the Media Author of the receipt of the Customer’s statement of acceptance.
5. Registration and Use
5.1 Registration on the adpic Platform is only allowed to legal entities and persons with unrestricted legal capacity, especially of full age.
5.2 Registration with adpic is free.
5.3 The data requested by adpic in the registration procedure must be provided completely and correctly. The registration of legal entities requires that it is made by a natural person authorized to represent and identified by name. If after the registration the provided data should change the User shall inform adpic thereof.
5.4 The User is responsible for keeping his/her password secret. He/she shall immediately inform adpic of any unauthorized use of his/her user account.
5.5 The User is responsible for any and all activities performed and transacted from his/her user account. The User shall not allow third parties to use his/her user account. The User shall indemnify adpic from and against any damage caused by the use of his/her user account as a result of his/her culpable conduct.
5.6 Access to adpic is not transferrable.
6. General Principles of Use
6.1 The Users are responsible for complying with the applicable laws when using the adpic Platform.
6.2 The use of the adpic Platform for purposes other than those provided in these terms and conditions of use or in a manner that may have a negative impact on the workings of the adpic Platform, especially automated reading out of the adpic database by way of programs or scripts, is not allowed.
7. Provision of Media Contents to Customers
7.1 The Customer is made aware of the fact that the details of the offered rights (details concerning ownership, obtaining third-party rights) as well as the Media Contents proper are provided by the respective Media Author. No guarantee is given that the recorded details are correct as regards the subject matter and in technical terms.
7.2 After the conclusion of the contract with the Media Author adpic will grant the Customer access to the Media Contents ordered by the Customer for a limited period of time. For this purpose the Customer will be e-mailed an access authorization.
7.3 The price mentioned in the layout table for the images offered from time to time is the final price plus applicable value added tax, as the case may be, and further special services (e.g. shipment of the image data by mail).
8. Fees, Terms of Payment
8.1 adpic has been assigned by the Media Author with payment collection on adpic’s behalf and for adpic’s account with the result that the Customer will pay accruing license fees to adpic only.
8.2 Payments of the Customers to adpic shall be made without deduction within seven (7) days upon receipt of the invoice, unless indicated otherwise in the invoice or agreed otherwise.
9. Liability, Indemnification
9.1 Damage claims of the User irrespective of the legal ground, whatsoever, especially for the breach of duties under the debtor/creditor relationship and for tort, are excluded where adpic caused the damage acting with slight negligence. This also applies to indirect or direct consequential damages as well as to loss of profit.
9.2 This will not apply where liability is mandatory, e.g. pursuant to sections 475 (1), 651, 437 (1) no. 2 of the BGB (German Civil Code), in cases of intent, gross negligence, injury to life, limb or health, breach of material contractual duties. Damage compensation for the breach of material contractual duties, however, is limited to the foreseeable damage typical to the contract, unless committed with intent or gross negligence or where liability for the injury to life, limb or health is incurred. The above regulations do not entail any change of the burden of proof to the disfavour of the User.
9.3 Where adpic’s liability is excluded or limited this shall also apply to employees, representatives and agents with vicarious liability.
9.4 If adpic is faced with third-party claims due to the User’s failure to comply with the provisions of these General Terms and Conditions of Business or other applicable laws, especially concerning responsibility for contents, the User shall indemnify adpic from and against any such claims.
10. Term of Contract
10.1 The contract of use is effective for an indefinite period of time. It may be terminated by either party at any time without notice.
10.2 The right to terminate for good cause shall not be affected by the foregoing. Good cause for adpic will be especially if adpic is faced with legal claims due to the User’s culpable conduct.
10.3 Termination may be made via e-mail, for the Customer to the e-mail address indicated by the latter.
10.4 Contracts between Customers and Media Authors, accordingly including granted rights to Media Contents, shall not be affected by a termination of this contract of use.
11. Data Collection, Customer Data
11.1 The Users are informed that adpic collects and stores their data in the amount required for the performance of the contract and on the basis of the data protection regulations. Their data will not be forwarded to any third parties. Please consult adpic’s data protection instructions for details relating to the collection and use of data.
12. Final Provisions
12.1 If any of the provisions of the General Terms and Conditions of Business should be invalid it shall not affect the validity of the remaining provisions.
12.2 Adpic is entitled to assign this contract to a third party. In such event the Media Author may terminate this contract within six (6) weeks after having received a respective notice.
12.3 Where adpic should detect any violation of these terms and conditions of use or other legal regulations adpic reserves its right to delete the affected Media Contents immediately and – in severe cases – to block the User’s access to the website.
12.4 German law shall apply on an exclusive basis to the legal relationship between the User and adpic.
12.5 If the User is a merchant as defined in the German Commercial Code, a public-law legal entity or a special government fund entity under public law without legal capacity, or if it has no general place of jurisdiction in the Federal Republic of Germany, the venue for disputes in connection with the use of adpic is agreed to be Bonn, Germany.
12.6 adpic has the right to modify the General Terms and Conditions of Business. Modifications of the General Terms and Conditions of Business will be notified to the User via e-mail. To this effect it is sufficient to refer to the internet address where the new version can be found rather than attaching the complete text. Provided that the User does not object to such modification within six (6) weeks upon receipt of the notification, the modification will be deemed accepted. adpic will emphasize this period to the User once again and separately in the notification of modification.
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