Artothek Bildagentur der Museen - Terms of delivery and business

A. General

 1.

All offers, deliveries and the licensing of images are sole subject to alteration and not exclusive to the following terms of business. Further usage agreements have to be negotiated individually.

 2.

Deviating Business Terms of the buyer are only valid with written permission through the agency. Business Terms of the buyer, which are indicated on in order forms, delivery receipts etc., or in own data, computers, internet or corresponding media are, herewith particularly inconsistent. Both for the case of delivery and possibly use of analogue picture material and for the case of transmission and, should the occasion arise, use of electronic transmission data of images an agreement is only valid on the grounds of these Business Terms, otherwise, the transmitted image material, or to be precise, the transmitted image data may not be used.

 3.

A rejection of our delivery terms becomes only valid (analogue picture material) through sending back of the delivered picture material within three working days from the receipt of the picture material at the buyer and (digital picture material) through deletion of the so-called “Low-Resolution-Materials” and referring to this written confirmation as against of the picture-agency ARTOTHEK before order of the high-resolution image/s.

 4.

Complaints, (analogue picture material) with regards to the content of deliveries, have to be made within two work days after receipt of the picture material by telephone and within further three days in written form; complaints (also regarding digital picture material) concerning technical or other concealed faults have to be claimed immediately after receipt in writing. In case of neglect of such complaints liability of our side for possibly already arisen or arising costs/damages is not assumed/excluded.

 5.

The buyer has to indicate at the order, however, at the latest before the technical usage of the images, way, extent and language area of the intended utilization, in case of advertising the product as well. The use of the material is only permitted, after the agency has given its approval to the intended use and the noticed purpose. “Low-Resolution-Material” from the agency website may on principle not be used for publication and distribution. A digitalisation of analogue material and the passing on of digital material by means of remote data transmission or data medium as well, is only allowed as far this is necessary for the practise of the customer given right of usufruct.

In case the information data of the buyer are not corresponding with the actual way of using, or is the actual usage not in agreement with the indication of the buyer the agreement on utilization is not given and the buyer is liable for claims of damages to the full extent moreover, for such cases the regulations of section G. of this general business terms do apply.

The delivered or the offered picture material/the offered picture data may not be altered or be worked on whatsoever without permit of the picture agency ARTOTHEK.

 6.

All picture files/data – delivered by Artothek have to be stored/kept in way so that they are not accessible to third parties

Delivered analogue picture material remains always property of the agency ARTOTHEK/author. It is at disposal exclusively and temporarily and for the acquisition of usufruct in the sense of copyright. The same is valid for digital picture material respectively to that extent picture data placed at disposal.

7.

Picture material of which the buyer does not want to acquire usufruct or already has acquired, has to be returned analogue picture material within the set term on the delivery note (as a rule after four weeks after receipt), is the set term exceeded withholding fees are due according to column G of these general business terms. For digital picture material corresponding electronic picture data have to be erased immediately if not acquired right of usufruct. The data have to be deleted, so that they cannot be recovered.

 

Picture material, of which rights of usufruct were acquired by the buyer or/and the orderer has indicated his use, has to be returned with analogue picture material within four months after receipt, regardless if it has actually been used by the buyer or not. Accordingly, digital picture material supplied by the agency has to be deleted within four months.

 8.

For analogue picture material for all deliveries of images delivery costs and managing fees are due according to arising way and content of expenditure.

A charging to account settlement with possible utilization fees is not possible. With payment of managing fees the orderer neither acquires right of usufruct nor rights of property (see additional column C).

Through the payment of damage compensation and/or a contract fine, which are calculated according to these terms column G, the buyer does not acquire rights of usufruct of the picture material or property of the picture material.

 9.

Conditions for the usage of digital picture data:

 All picture files/data – delivered by Artothek have to be stored/kept in way so that they are not accessible to third parties. To pass on picture files is only permitted if it is necessary for the exertion of the customer in the frame of the conceded usage rights.

 The picture data are usually available as download directly from our picture data base.

If they are sent as email attachment, they are to be stored in an area, that is not accessible to  third parties. The received email including the attachment is to be deleted.

In case the digital data have to be passed on to third parties in context of the agreed usage,

they have to be sent separately from the text message. Then the file has to be deleted from the sent box.

Please remind the recipient to delete the data in the same way immediately after back up as well.

 Picture data on CD/DVD are supplied in encrypted form. The received password is strictly confidential and is not to be stored on any digital media. A permitted passing on of picture data and password to third parties is again only allowed in encrypted form. The orderer/purchaser is fully liable for all damages incurred in case of misuse.

After carried out usage the received picture data has to be deleted immediately, in a way that it cannot be restored/recovered again.

 

  

B. Fees

 

1.

Each usage of our picture materials has to be paid a fee for. This is also valid for use of a picture as copy model for drawings, cartoons, made up photographies, at usage for layout purposes and customer-presentations, and of use for picture-details which become part of a new picture by means of photographic layout, photocomposing, electronic picture data or similar techniques.

 2.

Fees have to be negotiated before usage. They depend on the media, nature and size/extent of utilization, which has to be indicated to us. In case there is no fee request from the buyer or that there are no other fee agreements, it is automatically calculated according to valid fees of the agency, moreover, for the calculation of such a fee or such fees the “image-fees of the Mittelstandsgemeinschaft Foto Marketing (MFM) – overview of the regular market payment for picture utilization rights are valid.

 

All fees in offers, pricelists, and other documents are always indicated as net prices without value added tax (VAT) and social artists’ insurance.

All fees and cost calculations are due within one months after receipt of invoice without any deductions and have to be paid to the picture agency.

 3.

Fees are only valid for a single usage for the indicated purpose, range-extent and language area. Each further utilization is subject to an additional fee and needs our previous agreement in written form. In case of unauthorized usage and/or passing on of our picture material the regulation for contract fines according to column G of these General Business Terms applies.

 4.

In case an item with pictures (for example a book , a record cover, a CD-case, a DVD case, a prospectus etc.) is shown in a new media in altered way or shape a fee becomes due again for the visible photo motif/theme, independently from previously paid fees for rights of usufruct.

 5.

Blockage terms for certain ways of usage have to be agreed on in particular and separately.

 

C. Costs

 For selection of analogue picture material and the large-scale research managing fees can be charged, which depend on the necessary way and range of the required work and which have to be negotiated in advance.

The picture agency preserves the right to charge a fee of EUR 10,00  per downloaded picture.

 Postage, air freight fees and courier costs have to be paid by the customer. The same applies to  photographic and reprotechnical costs.

 

D. Disposal restriction, liability, utilization and copyrights

 

1.

With our invoice only the photographic copyright of the delivered images is granted.

As far as for publication further rights have to be taken out (for example, for the utilization of still protected works of art), is up to the user. Out of that possibly arsing additional costs have explicitly no affect on our fee charge. The protection term for works of art regarding fine/plastic arts amounts to generally 70 years after the death of the creator.

 2.

A distortion of the through copyright protected work of art (photographies), through copy draw, rephotography, photocomposing or electronical aid, is not permitted. Exceptions need a special agreement.

Tendentious usage and distortions/alterations in picture and word, as well as, usage that might lead to the abasement of shown persons, are inadmissible and make the user in duty bound for damage compensation, moreover, has the user, in such a case, to exempt the picture agency from any laying claim of the abased person and/or third persons.

 

3.

The passing on of analogue or electronic material to third parties is only permitted, provided

that they accept our terms and solely for the usage previously agreed with the buyer.  The buyer is fully liable for any breach of the terms of this agreement by third parties he supplied

with picture materials.

 4.

The user is bound to pay attention to the publicistic principles of the “German Presserat” (presscodex). The user, respectively the orderer takes over responsibility for texting, for

usage picture and/or text liability is not assumed of our side. At violation of such rights solely the user is responsible and has to pay compensation to possible third persons.

 5.

The publication of illustrations of famous personalities/personages can only be made with their name and only editorial, possible opposed entitled interests of the shown personages in the sense of § 23 Paragraph Kunsturhebergesetz (KUG) have to be watched by the user.

 6.

We explicitly reserve the rights for delegation of secondary rights to utilization companies and do not accept provisos after the acceptance of a fee exclude the use of further rights.

 7.

The despatch risk for the return of analogue picture material is taken by the sender due to the underlying lending or similar to lending legal circumstances. Costs and danger of complete and correct returns and improper inexpert wrapping are for the orderer and he is liable for loss or damage to pay compensation, even if the return was carried out by third persons commissioned by the orderer (§ 278 BGB); regarding the compensation to be paid in such a case the regulation of column G. is valid of these General Business Terms.

 

E. Copyright / voucher copy

 1.

We demand with reference to § 13UrhG explicit the notice entry of author on the picture authors and, moreover, an entry of the agency on our making available agency, and that, in a way, that there can be no doubt regarding the attachment/coordination of the respective picture. Collective picture record inventories in this sense are only sufficient, if from these a doubtless coordination to the respective picture is possible. The user has to exempt the picture agency from the omission of author – and agency entries resulting claims of third persons/parties.

 2.

Figure/numeral is explicit valid for advertising as well, short fading in/inserts or with other media, if not explicit special agreements were made.

 3.

Of each publication in print according to § 25 VerlagsG, at least, two complete voucher copies have to be sent to us unasked, spontaneousely and free of charge.

 

F. Online –picture – service

 

1.

The request for use of our online-systems has to be made in written form or online. Each user receives a password and a Login-ID for access.  The password has to be kept strictly confidential and may not be made accessible to third or other persons. In each case the user is fully liable for possible misuse of his or her personal password and following damages.

 2.

The setup of a user access is free of charge.

 3.

In case of contraventions against these terms ARTOTHEK has the reserved right for the blockage of the online-access.

 

 G. Contract fine /overall damage compensation (compare supplement G of these terms)

 1.

An unauthorized usage, distortion or passing on of our picture material, unauthorized passing on of copy print rights to third persons, unauthorized production of slide duplicates and inter- negatives, reproductions and blow-ups as well as the production of copies of digital data or analogue graphs of the data containing picture contents for archive use of the orderer and passing on of the same to third persons and for the case, that the customer has omitted a deletion of data according to the contract, a fee becomes due, with reservation of holding true of further damage compensations, in, at least, the height of five times as much as the agreed, common or according to valid picture fees of the MFM to find fees for usufruct.

 2.

Is the credit line of the picture omitted, we have claim for an extra charge in the height of – if need be 100% each to the respective usage fee plus possible administrative expenses.

 3.

If the analogue picture material not returned after expiration of the free term on approval or is the return late for unused pictures so-called withholding costs become due according to supplement to G 1.  Such withholding costs are, if need be, at long-term withholding, limited to the value of loss of each picture material according to column G 1.

This is also valid for free offers, if the recipient of the delivery is a constant orderer of picture material offered free of charge. (constant business relation).

Moreover, withholding costs become due according to supplement G1, if picture material, of which the orderer has acquired rights of usufruct and/or for that he has indicated the purpose of usage is returned after expiration of four months from receipt and these costs become due in addition to the fee for usage/utilization, except the case a longer loan-period of the picture material has been agreed.

 4.

For damaged or not returned analogue picture copies compensation has to be made, according to the differentiation in supplement to column G.

The respective amounts of the differentiation per analogue are valid agreed upon without proof of the picture agency regarding height of damage in each single case. The amounts are calculated from the loss of further rights of usufruct possibilities. The orderer has the reserved right to prove possibly less heavy damage, and we on our side have the reserved right for further claims regarding compensation and withholding costs (up to the amount of compensation in case of loss/destruction).

Replacement duplicates or otherwise on the grounds of already mentioned picture copies or stored electronic picture data produced supplement replacement photographies offered by the party who has to pay compensation are not accepted from our side.

 5.

In case picture copies that have been notified as lost and billed accordingly are found within one year after delivery and then returned, we compensate one half (50%) of the loss compensation; the cost for withholding are reserve, that is to say, already charged withholding costs are not reimbursed.

 6.

Analogue picture material is sealed. Is the seal broken without given cause for a certain usage, a layout fee becomes due, the height results from supplement to G. The holding true and carrying through of further compensation claims is reserved.

 

H. Terms of Payment, jurisdiction, other

 

1.

Our invoices have constantly to be paid net within 14 days after receipt, is this term exceeded we charge interest on arrears in the height of 5 %-points the basis charge according to § 288  Abs. BGB.

 2.

Jurisdiction and place/settling place for both parties, as far as they are skilled professional business merchants is only Munich.

 3.

Deliveries to foreign countries are subject to German law.

 4.

Should one of these delivery- and business terms be invalid, the validity of the other regulations is not affected.

Supplement to G  (Contract fine/overall compensations)

 1.

Withholding costs for exceeding return of analogue picture material per item and day:

For colour-slides/transparencies, colour copies/negatives                                EURO 1,00

 2.

Overall compensation for damage, destruction/loss of colour-slides, colour copies/negatives (that is to say of all genuine picture material):

 

a) slightly damaged, further use possible                                                          EURO    100,00

b) heavy damage with possible reduced further use                                         EURO    200,00

c) loss/destruction

    per original master copy                                                                                EURO  1.000,00

 3.

If digital images are lost and thus become available to the public, this will be considered as a total loss. In this case our contract partner owes a fee of 1.000 EUR per lost picture file.

Any consequent unauthorized publication is subject to damage payments according to section G. of these business terms.

 

4.

Layout.fees

 

Editorial                                                                                       each picture   EURO      30,00

Advertising/trade-products/Power-Point-Presentation:      each picture   EURO      55,00

Pretest                                                                                          each picture   EURO    100,00

 

The layout-fees are at use charged to account within one year.