General Terms and Conditions of Business, governing the business relationships with Thorsten Indra (following termed TI)

I. General

1. The subsequent General Terms and Conditions of Business (following termed T&CoB) shall apply to all orders, assignments, estimates, supplies and services rendered by TI.

2. They are deemed to have been agreed following the client’s receipt of TI’s supplies/ services or estimate, in any case following acceptance of the photographic material for publication at the latest.

3. In the event that the client intends to object to the T&CoB, he shall declare so in writing within three working days. An objection is hereby made to diverging T&CoB stipulated by the client. Diverging T&CoB stipulated by the client shall not be valid unless approved in writing by TI.

4. Within the framework of an ongoing business relationship, the T&CoB shall also apply to all future orders, estimates, supplies and services, without having to include them specifically each time.

5. Offers, supplies, services and the granting of utilization­rights are always without engagement and non-exclusive.

6. Utilization of images includes to mean any kind of printing, projection, copy, layout or any other form of reproduction. This includes for example also the use of an image as part or as a pattern for another image.

 

II. Photographic material surrendered for use

1. The T&CoB apply to all photographic material provided to the client, irrespective of its completion stage or available technical format. The conditions shall expressly apply also to electronic or digitally transmitted images.

2. The client accepts that the images supplied by TI consist of photographs in accordance with § 2, Section 1, Clause 5 of the Copyright Act.

3. Design proposals or concepts commissioned by the client are independent services, which must be remunerated.

4. The surrendered photographic material is always and only made available on loan. Copyright and all reproduction rights in the images, as well as ownership to the photographic materials themselves, remains the property of and are reserved by TI.

5. The client shall treat the photographic material with due care and may only pass it on to third parties for internal business purposes, i.e. for inspection, selection and technical processing.

6. Complaints relating to the content of the supplied items or the content, quality or state of the photographic material, must be communicated within 48 hours of receipt. The photographic material is otherwise deemed to have been delivered appropriately, in accordance with the contract and as noted.

 

III. Rights of utilization

1. In principle, the client only acquires a non-exclusive license for single usage.

2. Exclusive rights of utilization, media-related or territorial exclusive rights or blocking periods must be agreed separately and are subject to a minimum surcharge of 100% on the relevant basic fee.

3. With full payment of the resulting claims of the com­mission due to TI, utilization-rights are granted for the single usage of the photographic material as agreed in writing and for the purpose specified by the client and in the publication, medium or data carrier which has been specified by the client or which results from the relevant circumstances under which the order has been placed. If in doubt, the relevant object (newspaper, magazine etc.) for which the photographic material has been provided in accordance with the delivery memo or the dispatch address, shall be decisive.

4. Any use, utilization, duplication, distribution, dissemination or publication beyond the stipulations contained in Clause 3 is subject to payment and requires prior explicit approval by TI. In particular, this shall apply to:
– secondary utilization or publication, especially in anthologies, product-related brochures, advertising campaigns or other reprints,
– any editing, changing or redesigning of the photographic material,
– the digitalization, storage or duplication of the photographic material on any type of data carrier (e.g. magnetic, optic, magneto-optic or electronic carrier media such as CD ROM, CDi, DVD, diskettes, hard drives, RAM, microfilm etc.) unless such transactions are only performed for the technical processing of the photographic material in accordance with Clause III, 3 of the T&CoB,
- any duplication or utilization of the picture data on CD ROM, CDi, DVD, diskettes or similar data carriers,
- any storing, providing or making available of image data on the Internet or in online databases or in other electronic archives (this also applies to the client’s inter­nal electronic archives),
- the distribution of digitalized photographic material by way of file transfer, remote data transmission or on data carriers which are suitable for public reproduction/ display on screens or for the creation of hardcopies.

5. Changes to the photographic material made by photo­composing, photo­montage or with electronic aids in order to create a new copyrighted item are only permitted with TI’s prior approval in writing and only if such material is marked with [M]. Nor may the photographic material be drawn, copied, photographed or otherwise used as a working model or motive.

6. The client is not authorized to transfer rights of utilization granted to him to any third party, including other group companies or subsidiaries, either in whole or in part.

7. TI is entitled to complete disclosure about the scope of the utilization.

8. Any utilization, reproduction or transfer of images shall only be permitted provided that the copyright notice “Photo: © thorstenindra.com”) has been attached in a manner that leaves no doubt as to which picture the credit refers to.

 

IV. Liability

TI 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 client 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 client shall be responsible for the legend as well as the context in which the photograph is used.

 

V. Fees

1. The agreed fee for a particular commission shall apply. In the event that no fee has been agreed, the relevant work is governed by the current photograph fee guideline issued by the Mittelstandsgemeinschaft Foto-Marketing (small business association for photo marketing). The fee is subject to VAT at the statutory rate.

2. The fee covers only the non-recurrent use of the photographic material for the agreed purpose, in accor­dance with clause III, 3 or 2 of the T&CoB. In the event that the fee is also to include further use, this must be agreed in writing.

3. Any costs and expenditure incurred by the order/ com­mission (e.g. material and laboratory costs, model fees, costs for required props, travel expenses, per diems etc.) are not included in the fee and shall be at the client’s expense.

4. The fee in accordance with clause V. 1. of the T&CoB is also due in full even if the commissioned and supplied photographic material is not published. If the photographs are used as a working model for layout and presentation purposes, a minimum fee of EUR 80 per photograph shall be payable, except as otherwise agreed.

5. The minimum fee per picture order/ utilization is EUR 100.

6. For images which have been chosen for publication but have not been published within six months after delivery, an advance fee of EUR 250, which may later be credited towards the final fee, is due.

7. Suggestions and directions of the client do not have an impact on the fee, nor do they result in a shared copy­right, unless expressly agreed upon otherwise.

8. For selections ordered a research fee in line with generally accepted industry practices will be charged, which varies according to the kind and scope of the necessary effort for research and handling. Shipping fees will be charged separately. The research fee cannot be deducted from the utilization-fees.

9. The fee shall be paid within 2 weeks of the invoice date at the latest, unless a shorter payment period is stipulated in the invoice. Following a reminder, the client is deemed to be in default. When default occurs, interest of 12% p.a. shall be payable on this fee. Setoff of costs or the exercise of the retention right shall only be permitted in the event that the relevant claims brought forward by the client are undisputed and recognized by declaratory judgement.

 

VI. Return of the photographic material

1. The photographic material must be returned in the form and condition in which it was originally supplied, without being asked to do so, immediately upon publication or the agreed use, in any case within three months of the delivery date at the latest. Two samples/ proofs must be attached, which may be used by TI in his own promotional activities. An extension of the three-month period requires TI’s written approval.

2. In the event that TI surrenders photographic material to the client for test purposes only, at the client’s request or with his approval, in order to determine whether utilization or publication is desirable, the client shall return the photo­graphic material within one month of receipt at the latest, unless a different period is stipulated in the delivery memo. This period may only be extended if confirmed by TI in writing.

3. A delivery memo specifying the amount and kind of the photographic material must accompany all returns to TI.

4. The client shall bear the cost and risk of loss or damage of photographic material during safe keeping and transport until TI has received the package. Photographic material shall be returned at the client’s expense and with the customary packaging. The client shall also bear the responsibility of safe keeping and the risk of loss or damage if TI is asked by the client to deliver photographic material to a third party, or when the client places photographic material at the disposal of a third party.

 

VII. Contractual penalty, blocking, compensation

1. Each incident of any unauthorized use, utilization, reproduction or transfer of the photographic material (without TI’s approval) is subject to a contractual penalty of five times the utilization fee, subject to further claims for damages.

2. In the event that the copyright notice is not included, is incomplete, incorrectly placed or non-allocable, a sur­charge of 100% of the utilization fee shall be due.

3. In the event that the photographic material is not returned in good time (blocking), the period after the expiry of the periods specified in Clause VI.1. or 2., is subject to a contractual penalty amounting to

– EUR 0,25 per day and picture for black & white or color prints or slide duplicates

– EUR 1,00 per day and picture for slides, negatives or other unique copies

4. Damaged, destroyed or lost photographic material is subject to compensation without TI having to furnish evidence of the amount of damage incurred, where such damage amounts to:

- EUR 40 per black & white or color print or KB slide duplicate

– EUR 125 per medium or large format slide duplicate

– EUR 250 per slide original, negative or other unique copy

– EUR 500 per non-reproducible slide, negative or other unique copy

In the case of damage, the above rates must be reduced in accordance with the relevant extent of damage and the scope of remaining utilization options. In principle, both contracting parties reserve the right to furnish proof of more/ less damage.

5. In the absence of a proof or when billing is imple­mented without a proof or when billing is implemented without specifying which picture has been used where and in which publication, a contractual penalty of 50% of the utilization fee is to be paid.

6. The payments in accordance with Clause VII do not substantiate any rights of use or ownership.
 

VIII.

1. TI will treat each order with great care. He shall never­theless not be held liable for any incidental damages, losses or deficiencies due to photographic material, captioning or failure to deliver photographic material.

2. These conditions are governed by German law, also in the event that deliveries are effected abroad.

3. Any additions or modifications to these General Terms and Conditions shall be in writing only.

4. If any of the provisions contained herein are void, this shall have no effect on the validity of the remaining provisions. In such a case, the Parties undertake to replace the void provision with a valid one coming as commercially and economically close as possible to what they intended with the void provision.

5. The place of fulfillment and the legal venue shall be TI’s domicile in cases in which the client is a full merchant as defined by German commercial law.

6. The client agrees that his personal data, inasmuch as it relates to his business relations with TI and came to TI's knowledge in the course of their relations, may be stored and processed electronically.