Licence agreement - Westend 61 RM

General Terms and Condition

I. Preamble

1. The following general terms and conditions (referred to in the following as “conditions”) constitute a legally binding contract between you and Westend61 GmbH (referred to in the following as “Westend61”). They apply to all offers, deliveries, electronic transmission, and the granting of user rights for photographs, illustrations and other works (referred to in the following as “images”) by Westend61. Therefore, please read the following conditions carefully prior to using the website and before ordering or downloading images.

2. Your agreement with these conditions is confirmed through your registration via this website. Should you not accept these conditions, you are not permitted to use this website. Opening the packaging of a CD procured from this site also applies as acceptance of these conditions. Should you not accept these conditions, you are obligated to return the CD ROM package, unopened and unused, without delay to Westend61 for reimbursement of the purchase price.

3. Westend61 reserves the right to alter or modify these conditions at any time without prior notice. Continued access and use of the website after such modification are deemed as agreement to the new conditions. It is the responsibility of the person placing the order, i.e. the licence holder to regularly inform him/herself of the current status of these conditions. These conditions were last updated on 1st October 2007.

4. Differing terms and conditions of the purchaser, i.e. the licence holder apply only in the event that written agreement is provided by Westend61. Any licence holder’s general conditions of business and delivery on the order form, confirmation of order or other documentation are herewith expressly negated.

II. Subject of the Agreement

1. Westend61 generally grants to the licence holder neither an exclusive nor a transferable licence for use of the delivered or electronically transmitted images. The licence holder is only entitled to use the images in accordance with these conditions and is granted no rights other than those specified here or in an explicit individual agreement

2. All images are protected by copyright. Delivered or electronically transmitted images remain the property of Westend61 and/or its licensors/image providers and are made available exclusively for the acquisition of user rights according to copyright law.

III. User Rights (Licences)

1. General Provisions

1.1 The licensing becomes effective with the acceptance of these conditions and payment of the invoiced charges. The natural or legal entity whose name and address is provided on the order receives, on fulfilment of the above mentioned requirements, the non-exclusive and non-transferrable right to use the images, subject to the limitations detailed below. It is not permitted to use material, information or other content on this website without a valid licence.

1.2 When placing the order or at the latest prior to the actual use of the images, the licence holder must provide details of the nature, extent and territory (language) in which he/she intends to use the images and in case of Rights Managed images, the name of the end user. Westend61 declares its agreement to the use of the delivered images in accordance with the information provided by the licence holder. Should the details provided by the license holder not match the actual use or should the nature of use not be in accordance with the information provided, the license is deemed to be not granted. In this case, Westend61 must be held harmless from any third party’s claims.

1.3 Only user rights regarding the photographic copyright are granted for the respective image/s. Any approval or authorisation to the use of portrayed persons, names, brand names or trademarks, buildings, decoration and artistic designs are not included. This applies especially for commercial uses. The licence holder is responsible for procurement of the necessary permission or authorisation associated with the planned use from the respective competent person or authority. The publication of pictures of celebrities must be accompanied by their names and is only permitted in an editorial context.

1.4 Westend61 expressly reserves the right to the transfer of secondary rights. Clauses according to which the acceptance of a licensing fee is deemed to exclude further rights are expressly negated.

1.5 With reference to Section 13 of the German Copyright Act (UrhG), every use must be accompanied by an agency and copyright notation and this must be unambiguously associated with the respective image. Collective notations are adequate in this context only if they also allow no doubt of their relation to the respective image(s). The licence holder must hold Westend61 harmless from any liability or third parties´ claims arising from the failure to provide adequate copyright notation. Display of the images in television broadcasts and films or other media is not permitted unless expressly agreed to in an explicit individual agreement.

1.6 For every publication in a printed medium, at least two complete specimen copies must be forwarded, unrequested and free of charge, to Westend61 in accordance with Section 25 of the German publishing Act (VerlagsG).

2. General Reservation of Rights

2.1 The licence holder is obligated to observe the publishing principles of the German Press (Press codex), and is responsible for the accompanying text. Westend61 accepts no liability for any breach of the general privacy or copyright laws resulting from a composition of image and text that is misleading or distorts the context of the image. In case of a breach of this obligation, the user bears sole liability towards third partys claims for compensation and is also obligated to release Westend61 from liability for any claims of this nature.

2.2 Any distortion of the copyrighted images through derivative drawing, photographing, photocomposing or the use of electronic equipment is not permitted. Exceptions to this provision require an individual written agreement. Distortion of the context and adulteration of the image or text, and uses that may result in the degradation of the portrayed persons are not permitted and make the user liable to provide compensation.

2.3 It is not permitted to transfer the images or replication rights to a third party. Duplication, reproduction and enlargement by the user for archiving purposes and the transfer of such to third parties are also not permitted. Exceptions require written consent from Westend61.

2.4 In particular, the Licence holder is not permitted to engage in the following without express written consent from von Westend61:

    to license the rights granted to him/her to a third party, to transfer and/or sell these rights or to embed an image in an electronic template that is intended for use by a third party in print or the electronic media, e.g. design templates for websites, presentation templates or electronic greeting or business cards;

    to embed an image in a logo, brand image or other from of trademark;

    to distribute or make images available in a format suitable for download or to enable a distribution via mobile phone devices;

    to place the images for collective use in a CD library, data carrier, network configuration or similar arrangement if more than ten (10) persons have access to them, even if that access is at different times;

    to sell, license or market any product produced using the image/s in a form that makes it possible for the end customer to access or select the image as a single file.

3. Licenses for Rights Managed Images

The respective license of Rights Managed images applies only to the single and priory agreed use. Repeated use or other extensions of the granted license (purpose, nature, extent, duration or territory) is only permitted after prior written consent from Westend61.

4. Licenses for Royalty Free Images

Licences for Royalty Free images are granted for an unlimited period. Under consideration of the limitations specified in sections III.1. and III.2., a licensed RF image can be used in all print, online, film, video, broadcasting and multimedia products for promotion, advertising and editorial purposes or for the display on products provided that the products do not serve the further sale or reuse of the respective images.

On acquisition of a CD or other data carrier, the current version of any contained "End-User License Agreements" (EULA) issued by the manufacturer also apply. In the event that these contain provisions that conflict with these conditions, the more restricted licenses apply.

5. Termination and Revocation of Licenses

Licences granted by Westend61 can be terminated immediately in case of any breach of these provisions by license holder or the initiation of insolvency proceedings. In this case, the licence holder must cease using the images without delay, return any original and copies to Westend61 and delete or destroy all electronic copies.

IV. Fees

1. General Provisions

1.1 Every use of the images from Westend61 is subject to a fee. This also applies to the use of the image as a template for drawings, caricatures, replicated photos, for layout purposes and customer presentations and the use of image detail(s) in recomposition, photocomposing, electronic image carriers or similar techniques that make them a component of a new image.

1.2 All fees specified in offers, price lists and other documents are net amounts; they do not include VAT or social security contributions for artists (Künstlersozialversicherungsabgabe).

1.3 Images depicting models or aerial, underwater, expedition and other images whose production entails unusual circumstances and costs are subject to a surcharge in addition to the basic fee charged for the respective intended use.

1.4 Exclusive rights or any blocking period require a separate agreement and are subject to an additional fee amounting to at least 100 percent of the basic fee.

1.5 Westend61 is entitled to issue an invoice for the granted license as soon as the license holder advises that he/she will use all or a part of the delivered image/s, even if publication or other use has not yet occurred. Paid fees cannot be refunded if the intended publication or other use fails to be realised.

1.6 The payment of fees must always be accompanied by the customer number, image number (image code) and the name of the copyright holder. Should this information not be provided, an additional administrative fee will be charged calculated on the basis of the additional expenditure of time required. Account settlement must also include the name of the publication and details of the position in which the image appears.

1.7 A procurement and information fee is charged for the procurement of material and information from third parties. This fee is based on the nature and amount of effort involved and does not include any form of license fee. The payment of this administrative fee does not entitle the person placing the order to any user or ownership rights.

2. License fees for Rights Managed images

2.1 License fees for Rights Managed (referred to as RM in the following) images must be agreed upon prior to their use. These are determined according to the medium, nature, extent, territory (language) and duration of use; Westend61 must be informed of these exact details prior to use. In the absence of a prior agreement on fees, Westend61 is entitled to charge its respective current fees. If the licence holder provides incomplete information regarding the respective use of the image/s, Westend61 is entitled to charge a flat fee.

2.2 The agreed fees apply to a single use only, under the above-mentioned criteria. Every additional use is subject to new fees and requires prior written agreement. This especially applies to the use of images in digital media, e.g. Internet pages, pdf documents and e-papers.

2.3 Should an illustrated object (e.g. a book, album cover, brochure, etc.) be presented in one of the new media, a further fee must be paid for the recognisable image on this object. This especially applies to use for advertising purposes. The licence holder must inform Westend61 of the new use and acquire written consent to the new use.

3. License fees for Royalty Free images

License fees for Royalty Free images are set in the respective current Westend61 pricelist.

V. Liability of the Licence Holder

1. In the event of unauthorised use, distortion or transfer of the delivered or electronic image/s, the unauthorised licensing to third parties and the unauthorised reproduction of copies and/or enlargements by the licence holder for archive purposes or their transfer to a third party, the licence holder agrees to the payment of a fixed compensation fee of five times the usual license fee. This payment does not prejudice further claims for compensation. The licence holder is free to prove that the damage was of a lesser amount.

2. Should the author or agency notation be omitted without express consent from Westend61, a surcharge of 100% of the respective license fee, plus administrative costs, will be charged.

3. The licence holder is obligated to hold Westend61 and its licensors/image providers harmless against all claims, demands, costs and expenditure of third parties, including any necessary lawyer or court costs that arise from the licence holder’s breach of the provisions of this Agreement, the use or alteration of images or the unauthorised combination of images with other material.

VI. Guarantee, Warranty

1. Westend61 guarantees for a period of 90 days from the delivery date that the delivered or electronically transmitted images are free of any defects in material or workmanship.

2. In the case of just complaint, the licence holder has the right to a replacement delivery. The licence holder can only withdraw from the agreement and claim a refund of the fees in case of failure of the replacement. Westend61 accepts no further liability and provides no further guarantee either explicitly or implicitly, and particularly excludes any guarantee for the commercial suitability, quality, or appropriateness of the images for a specific use or their compatibility with computers or other technical equipment. Further, Westend61 only accepts liability for damages that result from intent or gross negligence. Liability for gross negligence is also excluded in relation to Merchants (Section 1 of the German Trade Act (HGB)).

3. The licence holder is obligated to check the delivered or electronically transmitted image/s without delay following their receipt and prior to any form of usage. Complaints must be made within one week following the licence holder’s receipt of the image/s and if requested by Westend61, the complaint must be made in writing within a further week following receipt of the image/s. Justified complaints regarding any concealed defect must be made in writing within ten workdays of their discovery. Failure to provide notification within these deadlines releases Westend61 from all liability for any damage that has occurred or may occur in the future.

4. Neither Westend61 nor its licensors/image providers or authorised dealers are liable towards the licence holder, their customers or any other third party for any general, special, direct, indirect, consequential, incidental, or other damages arising from this licence, any use of the images, or any other source.

VII. Terms of Payment, Miscellaneous

1. Our invoices are always payable in net within 30 days. Following expiry of this period, we will charge an interest of 8% points above the basic interest rate according to Section 288, Subsection 2 of the German Civil Code (BGB).

2. The licence holder agrees that his/her personal data, given that they relate to the business relationship with Westend61 and are made available in the course of this relationship, can be stored and electronically processed by Westend61 and used for information purposes.

3. This agreement, including deliveries made abroad, is governed by the law of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of Goods. To the extent that this is legally permissible, the exclusive place and court of jurisdiction is Munich, Germany.

4. Should one or more of these provisions be or become invalid or unenforceable, this does not affect the validity of the remaining provisions. The invalid or unenforceable provision is to be replaced, in good faith, with an enforceable or valid provision that is closest to the intention of the parties or its intended economic objective.