General Terms and Conditions of Delivery and Business
JACOBY Fotodesign, Holger Jacoby, Dipl. Fotodesigner
1. The following General Terms and Conditions of Delivery and Business (hereinafter referred to as the General Terms and Conditions) shall apply to all of the Photographer’s orders, offers, deliveries and services.
2. They shall be deemed to be binding on both Parties upon acceptance of the Photographer’s delivery, service or offer by the Customer, however no later than upon the photographic material being accepted for publication.
3. If the Customer does not accept the General Terms and Conditions, it shall lodge written notification to this effect within three work days. Any alternative general terms and conditions on the part of the Customer are hereby rejected. Alternative general terms and conditions on the part of the Customer shall be deemed to be void unless the Photographer agrees in writing to be bound by them.
4. The General Terms and Conditions shall also apply to all of the Photographer’s future orders, offers, deliveries and services under the ongoing business relationship notwithstanding the absence of any express reference to them.
II. Photographic material supplied
1. The General Terms and Conditions shall apply to all photographic material with which the Customer is provided regardless of its degree of completion or technical form. They shall expressly also apply to photographic material transmitted electronically or digitally.
2. The Customer acknowledges that the photographic material provided by the Photographer constitutes copyright material as defined in § 2 (1) No. 5 of the German Copyright Act.
3. Any suggestions submitted by the Customer for modifications or adaptations shall be deemed to be individual services subject to separate remuneration.
4. The photographic material provided shall remain the Photographer’s property notwithstanding the fact that damages may have been paid for this.
5. The Customer shall treat the photographic material carefully and may only make it available to third parties for internal business purposes, i.e. for viewing, selection and technical editing.
6. Any complaints concerning the content of the delivery or the content, quality or state of the photographic material shall be lodged within 48 hours of receipt. Failing this, the photographic material shall be deemed to have been received in proper condition, in conformance with the contract and as described.
III. Utilization rights
1. The Customer shall fundamentally only receive simple utilization rights for one-time utilization.
2. Exclusive utilization rights, exclusive rights for certain geographic territories or periods of time shall be subject to separate agreement as well as a surcharge of at least 100% on top of the basic fee in question.
3. Upon the photographic material being delivered, only the utilization rights shall be granted for one-time use of the photographic material for the purpose specified by the Customer and in the publication, medium or data vehicle which has been stated by the Customer or can be reasonably assumed in the light of the circumstances surrounding the placing of the order. In the case of any doubt, the property (newspaper, magazine etc.) for which the photographic material has been supplied as evidenced by the delivery note or the recipient address shall be decisive.
4. Any use, exploitation, dissemination, copying or publication going beyond that provided for in Section 3 above shall be subject to separate remuneration and require the Photographer’s prior written approval. This shall particularly apply to
* secondary exploitation or publication particularly in anthologies, product-related brochures, advertising or other types of reprinting,
* any editing work, modifications or alterations to the photographic material,
* digitalization, storage or duplication of the photographic material on data media of any type (e.g. magnetic, optic, magneto-optic or electronic media such as CD-ROM, CDi, disks, hard disks, RAM, microfilms etc.) other than for the technical editing of the photographic material pursuant to III 3. herein,
* any form of copying or utilization of the photographic data on CD-ROM, CDi, diskette or similar data media,
* any inclusion or display of the photographic data on the Internet or in on-line databases or other electronic archives (including the Customer’s internal electronic archives),
* the transmission of digitalized photographic material by data transmission lines or on data media for reproduction on screens or for the production of hardcopies.
5. Any modifications to the photographic material using photo composing, mounting or electronic means to produce a new copyright work shall require the Photographer’s prior written approval and shall be designated as such by [M]. In addition, the photographic material may not be copied in drawing form, recreated photographically or used in any other manner as a motive.
6. The Customer may not transfer the rights of utilization or any part thereof granted to it to any third parties unless these are members of its group or subsidiaries.
7. All use, reproduction and transfer of the photographic material shall be subject to the condition that the copyright information stipulated by the Photographer be included in such a way that it can be clearly allocated to the picture in question.
The Photographer shall not be liable for the breach of any rights held by persons or objects depicted in the photographic material unless a duly signed release is enclosed. The Customer shall be responsible for acquiring rights of utilization over and above the copyright to the photograph in question and for obtaining releases from collections, museums etc. The Customer shall be responsible for the legend as well as the context in which the photograph is used.