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A. Scope of Applicability
These terms and conditions shall apply to the use of the image database as well as for the electronic retrieval and use of visual material, which is made available by dpa Picture-Alliance GmbH (hereinafter referred to as “Picture-Alliance”) and namely also when these services are carried out without use of or express reference to these terms and conditions. The database and the visual material shall consequently be made available based on these terms and conditions.
“Visual material” shall be considered to be all photographic, graphic as well as film material from Picture-Alliance’s range (photos, graphic representations, drawings, diagrams, videos etc.).
Amendments or incidental agreements shall only be valid with Picture-Alliance’s prior confirmation in textual form and shall only apply for the respective individual business case. Terms and conditions of the respective other party to the contract that differ from these terms and conditions shall not be recognised and not become the content of the contract, even if they are not expressly contradicted.
The other party to the contract (hereinafter referred to as “customer”) shall be the party that actively uses the image database or has registered in due form for this purpose. This also applies if the customer has registered itself through a third party provider, which subsequently acts as an agent in connection with the access to the Picture-Alliance’s image database or the customer is in a contractual relationship with Picture-Alliance otherwise, which has as its subject matter the use of Picture-Alliance’s range of images.
B. Image database agreement and use of the image database
Picture-Alliance operates (currently under www.picture-alliance.com) an image database, in which Picture-Alliance’s as well as other agencies’ and providers’ visual material can be inspected and searched for the purpose of selection for the acquisition of rights of use. A use of the image database for other purposes is expressly prohibited.
The active use of the image database with access to the visual material requires a registration. The data indicated in the registration mask or data notified through any other registration operation must be true accurate and complete.
After transmission of the registration data, the information required for the completion of the registration shall be transmitted to the prospective clients. Before activation of the customer account for the image database, the customer must confirm the applicability of these terms and conditions between the parties as well as the data indicated during the registration. Subsequently, the customer shall receive its access data (login and password) for its account. By sending the access data a so-called image database agreement shall be concluded between the parties to the contract. Picture-Alliance is entitled to refuse the registration of a prospective client and thus the conclusion of a contract without indicating reasons.
The customer undertakes not to disclose the access data to the image database to a third party or make it available for use by a third party. The customer is responsible and, obliged to pay for all retrievals of visual material through its account. If the access data is lost or there is suspicion of the misuse of data, the customer must notify this to Picture-Alliance immediately.
The customer shall have access to the image database generally 24 hours every day of the year apart from on necessary maintenance times. However, Picture-Alliance cannot ensure the continuous accessibility of the image database or that certain results will be able to be achieved through the use.
The contents of the image database shall be continuously updated. Picture-Alliance shall remain free to alter, delete or supplement the existing contents at any time.
In accordance with the German Federal Data Protection Act [Bundesdatenschutzgesetz] and/or the EU General Data Protection Regulation (GDPR), the customer’s attention is drawn to the fact that Picture-Alliance and its vicarious agents will store user information and log files in digital form and process these in accordance with the intended purpose of the contractual relationship existing with the customer. Details regarding searches and logins to the databases will be handled confidentially.
If the customer makes personal data available to Picture Alliance for the purpose of setting up user access to the image database, the customer is responsible for the transmission of the data in line with data protection and also provides assurance that the customer has gathered the data in a permissible manner, in particular by securing where applicable the necessary consent of the party involved for disclosure and use by Picture Alliance and to demonstrate this on request..
The customer must omit all acts that impair or jeopardise the operation of the image database. The customer may in particular also not read out or copy the image database through automatic tools (for example Web-Crawler or Wrapper).
C. Term and termination of the image database agreement
An image database agreement between the customer and Picture-Alliance shall be concluded for an indefinite period in each case.
Both parties may terminate the image database agreement at any time with effect for the respective end of the month. Should rights of use have been acquired already, these shall not be affected by the termination. However, the customer may not continue to use the image database after the termination of the image database agreement and therefore also not download any further visual material from the image database.
This shall not affect either party’s right to terminate in exceptional cases of the image database agreement for important cause. Important cause shall exist for Picture-Alliance especially when
The customer provides false and/or incorrect details during its registration and/or does not inform Picture-Alliance immediately about any changes,
The customer remains in default with a payment despite a reminder notice by Picture-Alliance,
The customer breaches substantial regulations of these terms and conditions and/or the contract on use,
Picture-Alliance suspends all or part of the operation of the image database or effects a significant change in the orientation of the image database.
D. Blocking of the accounts, recall by Picture-Alliance
Picture-Alliance may block the customer account without prior notice to the customer in the event of an at least reasonable suspicion of a breach of these terms and conditions, a contract on use and/or third party rights. The customer shall be informed about the blocking by Picture-Alliance. The blocking shall continue until either the suspicion was rebutted or the breach was intercepted and the customer has warranted that it will omit future breaches in a convenient manner. If the breach establishes Picture-Alliance’s right to terminate in exceptional cases, Picture-Alliance may also give extraordinary notice of termination to the customer instead of cancelling the blocking.
If visual material is complained about to Picture-Alliance by third parties, Picture-Alliance may recall the visual material concerned from the customer by e-mail to the address deposited in the customer account. Recalls must be observed without delay and the visual material concerned must be removed from the customer’s range of images and each use must be omitted.
E. Acquisition and extent of usage rights, use of visual material
The downloading and the subsequent use of the visual material shall always require the prior fee-based acquisition of rights of use by the customer. The acquisition of rights of use shall be done in a separate agreement between the customer and Picture-Alliance. These terms and conditions shall apply additionally for all agreements on use and must be strictly observed, unless expressly agreed otherwise in the licence agreements. In particular, the following regulations shall develop binding effect in connection with the use of the images:
The display of visual material in the image database by Picture-Alliance is non-binding. The customer shall only submit a binding offer through its purchase order. The purchase order may be submitted both in writing, by e-mail or by telephone through the order function in the image database. In the order operation through the image database, the customer may choose between different modes of dispatch.
The respective contract in the form of a licence agreement shall regulate in particular the nature and extent of usage rights as well as the consideration for this owed by the customer. A confirmation of receipt through a purchase order in principle does not yet constitute any conclusion of a contract. The customer shall acquire the non-exclusive usage rights, limited as regards time, territory and content, to the visual material.
Any use of the visual materials requires the prior consent of Picture-Alliance (release note), which may be given in writing or by e-mail. This also applies to use of the visual materials as a model to sketches, editing work, printing or for layout or presentation purposes. For clarification purposes, it should be noted that the delivery or the provision of visual materials in the chosen mode of dispatch does not yet comprise any release for a use. The release note must be obtained from Picture-Alliance’s image sales or shall be in accordance with a separate contractual agreement.
The visual material shall in each case be made available for a limited period of use. If it is not used, the visual material must be deleted from all of the customer’s electronic storage devices no later than within one month. Visual material which was used and for which usage rights have been acquired, must be deleted in electronic storage devices without delay as soon as the entitlement for use has expired or the licence agreement has terminated. The visual material must be deleted after three months (from the obtaining or retrieval) in any case.
The declaration of release granted by Picture-Alliance also only entitles the customer to use it once for the indicated purpose. The respective information and restrictions in the accompanying image metadata must be strictly observed with regard to the nature and the location of use. Any use extending beyond the agreed scope is once again subject to the payment of a fee and once again requires the release in advance. In particular, it must be observed that digital use as well as analogue use (e.g. in print media) of visual material as well as the use of a complete work and the use of parts (for example in the case of video and still image from the video concerned) in each case constitutes various uses.
The customer must always unconditionally observe the accompanying image information (caption) as well as image metadata and, notices on use and/or restrictions contained in these. The customer shall be solely responsible for damage or losses resulting from non-compliance, and indemnify and hold harmless Picture-Alliance from any third party claims. Furthermore, Picture-Alliance expressly reserves the right to assert further compensation claims against the customer due to any non-compliance with the information.
The customer must check the visual material after receipt of the delivery (regardless of the respective mode of dispatch) to ensure that it is complete and free from defects. Should the delivery be incomplete or any individual images are defective, the customer is obliged to notify the incompleteness or the ascertained defects within 72 hours after receiving the consignment or after data retrieval or transmission in textual form. Any claims regarding details that are omitted or incomplete or not submitted on time shall exclude grounds for complaint that the delivery is incomplete or defective, and any liability of Picture-Alliance for costs that have already been incurred or costs incurred in the future.
Two specimen copies of each publication must be sent to Picture-Alliance immediately, unsolicited and free of charge. Picture-Alliance shall be notified immediately about the number of copies of the printed work. For publications in online media, the URLs must be notified to Picture-Alliance and if necessary the required access data. The publication or the notification about the publication must be sent indicating the respective image number in the image database.
A disclosure of the visual material to a third party and the duplication of the visual material, as well as editing or reorganisation are not permitted without the prior consent of Picture Alliance, which may be given in writing or by e-mail. This shall include the sale of links inter alia cross references in the Internet to these images to third parties.
Only the simple usage right to the photography copyright shall be transferred to the customer. In particular, consent to the use of the visual materials given by Picture-Alliance shall not include the transfer of rights or the assurance that persons depicted or the owners of the rights to the depicted works or owners of trademarks or other property rights have given permission to reproduce them publicly, especially within the scope of advertising. The customer is responsible for obtaining the necessary approvals from third parties. The customer must 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 the use is carried out. This does not apply if receipt of the required approval or Picture-Alliance’s rights has been expressly guaranteed in writing.
Visual material, which identifiably shows persons, may only be used in the temporal and substantive context of the image accompanying text (caption). The respective information and restrictions must be strictly observed with regard to the type and location of use. Image and text may not be used in a distorted way or in a way that distorts the meaning. The customer is generally obliged to observe the journalistic principles of the German Press Code or comparable journalistic duties of care.
Visual material may not be used in an illegal or immoral context. Especially but not limited to uses that serve incitement to hatred and violence against segments of the population, incite persons to commit criminal offences or glorifies or trivialises violence within the meaning of sec. 130, 130a and 131 German Criminal Code [Strafgesetzbuch (StGB)] is pornographic or are calculated to cause serious moral harm to children or adolescents or impair their wellbeing within the meaning of sec. 184, 184a, 184b and 184c.
When using the visual materials, it must be marked in each case clearly and unmistakeably with the copyright notice and the photographer’s name indicated in the image accompanying data or the caption. If such a photo credit is not visible, the label “photo: Picture-Alliance" must be attached; the name of partner agencies and/or other sources of the visual materials must also be included, if this is requested in the caption or the image accompanying data or if these are referred to there. The obligation to indicate the author is additionally indicated under sec. 13 German Copyright Act [Urheberrechtsgesetz].
Any concession of rights of use shall take place subject to the condition precedent that the royalty fee is paid to Picture-Alliance.
If Picture-Alliance informs the customer that imminent, potential or actual claims under statutory violations against third parties exist, for which Picture-Alliance may be liable, the customer shall suspend the use of the visual materials without delay. Picture-Alliance shall make available to the customer comparable visual material free of charge upon request, in other respects however as a replacement under the contractual conditions.
F. Fees and Charges
Any use of the visual materials supplied is subject to payment of a fee.
In addition to the royalty fee, further costs may be incurred. Thus, for the download of the fine data of the visual materials (HighRes) through the image database a technical charge in the amount of € 26.00 must be paid, unless agreed otherwise between the Parties. If searches or composition of visual material or an image selection at the request of the customer is made by Picture-Alliance, a handling charge may be levied.
Exclusive rights for visual material and corresponding blocking periods and fees incurred for these must be agreed individually with Picture-Alliance. After the end of the agreed period, the respective fee shall be due even if no publications were made until then. Picture-Alliance is entitled to offer the same material for use to other prospective clients after the blocking period has expired.
Picture-Alliance’s 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 taxes and any accruing artists’ social security contributions. Picture-Alliance is entitled to demand 5% interest on default over the respective base rate of the European Central Bank or over the appropriate interest rate superseding it 30 days after the due date, plus rebilling costs of € 5.00 per reminder.
G. Release, Contractual Penalty and Liability
In the case of unauthorised use, duplication, amendment, editing, alteration, passing on of the visual material, or electronic storage or non-compliance with the copyright notice, the customer indemnify and hold harmless Picture-Alliance from all third party claims resulting from this. This shall also include the costs of Picture-Alliance’s legal defence.
In the case of unauthorized use, Picture-Alliance shall also be entitled to demand a contractual penalty in the amount of three times the normal fee for use, but at least € 350 per image. The enforcement of any further compensation claim shall remain unaffected by this.
On payment of compensation or a contractual penalty, the customer shall acquire neither the ownership nor usage rights of the visual material.
Picture-Alliance‘s liability for compensation is, if this depends on fault, restricted or excluded as follows: Picture-Alliance is not liable in the event of normal negligence by its executive bodies, legal representatives, salaried employees and other vicarious agents as well as in the case of gross negligence by its non-executive salaried employees or vicarious agents, unless material contractual obligations are breached. A material obligation is such an obligation whose fulfilment makes it possible to implement the contract in due form at all, whose breach endangers the achievement of the contractual purpose and on whose compliance the customer may regularly rely. The liability for grossly negligent breach of material contractual obligations regarding the vicarious agents, unless these are salaried employees, as well as concerning the breach of material contractual obligations without gross fault is restricted however to the reimbursement of typically foreseeable damage or loss in this regard however to a maximum of € 50,000 per insurance claim. The foregoing exclusions of liability and restrictions of liability shall not apply in the event of a culpable injury to life, limb, or health or if liability is incurred under the German Product Liability Act [Produkthaftungsgesetz] for material damage to privately used objects or for personal injuries even without fault. Liability undertakings given to third parties, who have their cause in this contract, may not be given without Picture-Alliance’s consent. In addition, the customer undertakes to participate in a reduction of damage or loss.
Picture-Alliance shall not be liable in the event of errors or disturbances in the service operation and delivery difficulties due to industrial disputes or in cases of force majeure. In the event of errors or disturbances in the service operation for other reasons, Picture-Alliance shall be liable in accordance with the foregoing regulation in item 1.
H. Customer’s obligation to inform
If the customer holds the view that the visual material provided in the image database infringes its rights (for example copyright, neighbouring rights, personality or trademark rights), it shall draw Picture-Alliance’s attention to the infringement of rights and give Picture-Alliance the opportunity to react within an appropriate period before the customer avails itself of the assistance of an attorney at law or a court.
I. Final Provisions
Should one or several provisions of these terms and conditions be or become invalid, this shall not affect the validity of the other provisions. Instead of the invalid regulation, a regulation shall apply which approximates as closely as possible to the intended purpose; the same shall apply in the event of gaps in the regulations.
Picture-Alliance is entitled to assign rights and obligations in whole or in part to their parent company, dpa Deutsche Presse-Agentur GmbH, even without the customer’s consent.
The place of performance and place of jurisdiction for all claims arising from the contract and in connection with these terms and conditions and contracts with merchants, legal persons under public law or special funds under public law or with persons who do not have a general place of jurisdiction in Germany, based on it shall be Hamburg (-Mitte). Picture-Alliance may bring an action against the customer at its option also at the court with jurisdiction for its registered office.
The law of the Federal Republic of Germany shall apply to all legal disputes between Picture-Alliance and the customer as agreed, with the exclusion of the UN CISG.