A. Validity of the terms of business
Visual material shall be made available by dpa Picture-Alliance
GmbH (referred to below as dpa-PA) exclusively on the basis
of these terms of business.
The General Terms of Business also apply to all future deliveries,
for the electronic retrieval and use of images from the
image databases and for electronic transmission, unless
other conditions are expressly agreed, which must be in
writing.
Should the buyer’s terms of business differ from these
General Terms of Business, they shall not be recognized;
and hence not form part of the agreement, even if they have
not been expressly contradicted.
B. Use of visual material
1. Visual material shall only be provided, or can be retrieved
or transmitted electronically only for inspection, and shall
be made available exclusively on a temporary basis. dpa-PA
shall decide whether to make original or duplicated visual
material available to the customer. There is no obligation
to give a corresponding indication.
The visual material shall remain the property of dpa-PA
or its partners, and must be returned or deleted from the
electronic memory within one month at the latest, if it
is not used. Any visual material for which rights of use
have been acquired must be returned immediately after use,
at the latest, however, within three months from the date
of the delivery note or retrieval or transmission of the
data, or deleted from the electronic memory. Section D.4.c.)
of these General Terms of Business are not affected in this
respect. The customer shall bear the costs for returning
the material.
2. When using the digital database of dpa-PA, the customer
shall note the corresponding accompanying image information
(image metadata) and observe the restrictions on use and
application contained therein. The customer shall be solely
responsible for any damage resulting from non-compliance,
and shall release dpa-PA from any claims made by third parties.
Furthermore, dpa-PA reserves the explicit right to make
compensation claims against the customer in the event of
non-compliance.
3. The customer shall check the visual material after taking
delivery to ensure that it is complete and free of defects.
Should the delivery be incomplete or any individual images
be defective, the customer is obliged to inform us by telephone
or in writing about the incompleteness or the ascertained
defects within 72 hours after receiving the consignment,
or after data retrieval or transmission. The defective images
must be returned to dpa-PA immediately. Any claims regarding
defects that are omitted, incomplete or not submitted on
time shall exclude grounds for complaint that the delivery
is incomplete or defective, and any liability on the part
of dpa-PA for costs which have already been incurred or
costs incurred in the future.
4. Any use of the visual material requires prior written
consent from dpa-PA (declaration of release). This also
applies to use of the visual material as a model to work
from for sketches, printing or for layout or presentation
purposes and to the opening up of slide frames or transparencies.
5. The release of visual material granted by dpa-PA only
entitles the recipient to use it once for the stated purpose,
unless further use is expressly intended. The respective
information and restrictions in the accompanying image information
(image metadata) must be followed with regard to the type
and location of use. Any use extending beyond the agreed
scope is once again subject to a fee and must be authorized
in advance.
6. It is not permissible to copy, edit or alter the visual
material, or to pass it on to third parties, without prior
written consent from dpa-PA. This includes the sale to third
parties of links to these images, such as links on the Internet.
7. Exclusive rights or blocking periods must be agreed separately.
8. Two specimen copies of each publication shall be sent
to dpa-PA immediately, unsolicited and free of charge. dpa-PA
shall be notified about the number of copies of the printed
work.
C. Scope of the rights of use
1. In general, only the simple right of use of the photographic
copyright shall be transferred.
2. The consent to use of visual material granted by dpa-PA
does not include the assurance that persons depicted or
the owners of the rights to depicted works of art or applied
art or owners of trademark or other property rights have
given permission to reproduce them publicly, especially
for use within the scope of advertising. The customer is
responsible for obtaining the necessary authorizations from
third parties in individual cases. The customer shall itself
observe the personal rights, copyrights, trademark and other
property rights of depicted persons, works, objects or trademarks
in respect of the laws of the country in which use is to
be carried out. This does not apply if receipt of the required
permission or rights has been expressly guaranteed by dpa-PA
in writing.
3. Visual material, especially that in which people are
recognizable, may only be used in connection with the accompanying
text. Image and text may not be used in a distorted way
or in a way that twists the meaning. The user is generally
obliged to observe the journalistic principles of the German
Press Code or comparable journalistic duties of care.
4. The customer release dpa-PA from any claims by third
parties in this respect and shall bear the legal consequences
itself, should an internal violation of the law take place.
5. Prior written consent from dpa-PA is required for the
following actions:
a) the duplication and especially the digitalization of
visual material,
b) the storage of image data in online databases or other
electronic archives accessible to third parties,
c) the storage of image data on diskette, CD-ROM or similar
data carriers,
d) any digital or other change or redesign of visual material.
Should permission be given for digitalization, the names
of the authors of the images and the name of dpa-PA must
be linked to the image data electronically; a guarantee
must also be obtained from the customer that this link will
be retained during each data transmission, during the transfer
of the image data to another data carrier, during reproduction
on a screen and during any public reproduction, so that
both the author of the image and dpa-PA can be identified
at all times.
All digital images in electronic archives and all external
data carriers must be deleted completely as soon as the
customer is obliged to return the visual material or the
contract is terminated.
6. When the visual material is used it must be marked clearly
and unmistakably with the originator’s and / or the
agencies photo credit specified in the database. If such
a photo credit is not visible, the label "Photo: picture alliance”
must be attached; the name of the respective portal partner
and the author of the image must also be attached, should
this be requested by dpa-PA or if the name of the portal
partner or the author of the image is named in the image
text.
7. Any concession of rights of use shall take place subject
to a condition precedent that the fee owed in respect of
use is paid to dpa-PA.
D. Fees and charges
1. Any use of the visual material supplied is subject to
payment of a fee.
2. Postage and packaging and a handling fee are calculated
for each delivery of visual material proportionate to the
type and scale of the costs incurred, and shall be at least
€ 26,-- per delivery. This handling charge is not
credited against a subsequent fee.
3. dpa-PA charges an advance fee of € 50,-- for each
consignment on-approval, which is clearly requested for
presentation purposes. This advance fee may be offset against
any fees for use.
4. Should the time limit for returning the goods be exceeded,
blocking charges will be due. They are € 30,-- for
each image per month commenced. A time limit has been exceeded
if:
a) supplied visual material is withheld for longer than
one month, without a declared use having taken place during
this period,
b) visual material, whose rights of use have been purchased,
which has not been used within 6 months, and this has not
been indicated to dpa-PA within this period.
c) visual material that has been used and not returned or
deleted within one month after use.
The assertion of damage caused by default will not be affected
by the blocking charge. The blocking charges will not be
credited to any fees for use. They do not constitute any
right of use or ownership.
5. A fee reduction will not be granted for any color images
that are used in black and white format.
6. In the case of exclusive rights for visual material the
right of use shall be limited to a blocking period of 4
weeks. Exclusive fees must be agreed with the dpa-PA on
an individual basis. After the agreed time limit has expired
the respective fee is due, even if publication has not taken
place by then. dpa-PA is entitled to offer the same material
to other prospective clients for use after the blocking
period has expired.
7. dpa-PA invoices are due and payable immediately on receipt
without any discount. All amounts, such as fees, costs and
handling charges are net, plus statutory sales tax and any
accruing artists’ social security contributions.
dpa-PA is entitled to demand 5% interest on default over
the respective base rate of the European Central Bank or
over the appropriate interest rate superceding it 30 days
after the due date, plus rebilling costs of € 5,--
per reminder.
E. Liability and compensation
1. On receipt of the consignment, the customer shall be
liable to dpa-PA for loss and damage of the visual material
provided, until its safe return has been completed.
2. In the case of unauthorized use, duplication, amendment,
editing, alteration, passing on of the visual material,
or electronic storage or non-compliance with the copyright
notice, the customer shall release dpa-PA from all third
party claims resulting from this. dpa-PA shall also be entitled
to demand a contractual penalty of twice the normal fee
for use, but at least € 200,-- per image, in this
event. Enforcement of any further compensation claim shall
remain unaffected by this.
3. Should images in the buyer’s sphere of risk go missing
or should images be returned in a state that excludes their
further use, compensation shall be paid. Compensation amounts
of € 500,-- for each original image and € 100,--
for each duplicate shall apply as agreed, without dpa-PA
having to prove the level of damage in individual cases.
These amounts are calculated on the basis of loss of further
use. The buyer retains the right to prove lesser damage
in individual cases and dpa-PA also expressly reserves the
right to make further compensation claims.
4. In the event that images returned in a defective state
can be restored to perfect condition through cleaning or
other measures, the customer shall reimburse the costs incurred
for this. dpa-PA shall be entitled to demand at least €
100,-- per image as compensation in such a case, without
proving costs incurred, unless the customer proves lesser
damage.
5. Should any lost visual material later be found, dpa-PA
shall be entitled to recover this visual material. In the
event that the images are recovered, compensation shall
be paid, minus any accumulated blocking charges.
6. On payment of compensation or a contractual penalty,
the customer shall acquire neither the ownership nor rights
of use of the visual material.
F. Liability of dpa-PA
1. The customer’s warranty rights against dpa-PA are
restricted to the contractor’s right to be given the
opportunity to remedy defects. Should it not be possible
to remedy the defects or should attempts to do this be unsuccessful,
the customer is entitled to withdraw from the contract.
Further warranty claims shall be excluded herewith.
2. The liability of dpa-PA for compensation is restricted
or excluded as follows, in so far as it is at fault: dpa-PA
shall not be liable in the event of normal negligence by
its management bodies, legal representatives, employees
and other vicarious agents, and in the case of gross negligence
by its non-executive employees or vicarious agents, unless
essential contractual obligations are breached. Liability
for a grossly negligent breach of essential contractual
obligations in respect of vicarious agents, unless they
are executive employees, and with regard to the breach of
essential contractual obligations without gross negligence
is however restricted to compensation of typically foreseeable
damage, though not exceeding € 50,000,--. The aforementioned
liability exclusions and liability restrictions shall not
apply to the negligent violation of life, body, and health,
or in so far as liability applies in the case of material
damage to privately used items, or for personal damage even
in the absence of negligence according to german product
liability law. Any undertakings given to third parties,
which have their basis in this contract, may not be given
without the consent of dpa-PA. Furthermore, the contracting
party shall undertake to participate actively in reducing
damage.
3. dpa-PA shall not be liable in the event of errors or
malfunctions in the service operation and delivery difficulties
resulting from industrial disputes, or in cases of force
majeur. In the event of malfunctions in the service operation
or errors in the service operation for other reasons, dpa-PA
shall be liable according to the ruling in No. 2.
G. Final provisions
1. Should one or more of the aforementioned provisions be
or become ineffective, the validity of the remaining provisions
shall not be affected.
2. The place of performance and place of jurisdiction for
all claims arising from this contract shall be Hamburg (Germany),
in so far as the customer is a trader, or has no general
place of jurisdiction within the country.
3. The law of the Federal Republic of Germany shall apply
to all legal disputes between dpa-PA and the customer as
agreed, with the exclusion of the UN CISG.
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