General Terms and Conditions of Joerg Hempel Photodesign.
1. Materials Usage
1.1 "Materials" shall mean all manner of photographic materials and "image" shall mean each individual slide or photograph included in the materials.
1.2 The customer must identify the proposed usage of the Materials when ordering, and if for advertising, must also identify the product being advertised. The use of the Materials is only permitted once Joerg Hempel Photodesign shall have consented to use for such specific purpose in writing.
1.3 Any other proposed use of the Materials by the customer will require the further written consent of Joerg Hempel Photodesign.
1.4 The Materials may not be altered or reworked in any manner without the prior written consent of Joerg Hempel Photodesign.
2. Term of Usage; Return
2.1 The Materials are provided to the customer on a rental basis and must be returned to Joerg Hempel Photodesign within the return date of the delivery note. Digital Materials shall be erased after usage.
2.2 If the Materials are not timely returned, a further charge of EUR 1.00 per day per Image shall be payable to Joerg Hempel Photodesign, which charge will be offset against any possible damages payable pursuant to Section 5.2 below.
3. Scope of Assigned Rights
3.1 The ownership of ordered Materials shall always remain in Joerg Hempel Photodesign. The payment of any possible damage claims pursuant to Section 5.2 below shall not act to transfer any rights to a customer with respect to any Image.
3.2 Unless otherwise agreed in advance and in writing; the customer is permitted a onetime use of the Materials, in respect of a single publication, for the disclosed purpose and only within the Federal Republic of Germany.
3.3 The customer may only use the Materials for the stated purposes, and is not permitted to duplicate or otherwise maintain copies of Materials, in any media form; the prohibition includes duplication for the customer's own records.
3.4 The transfer of the Materials or the assignment of any rights in the Materials to any third party is not permitted.
3.5 The customer must acquire any rights which might be required for the publication of works of art or architecture depicted in any Image. Any customer publishing such pictures is solely responsible for claims of third parties by reason of violation of such rights.
3.6 The customer must acquire the consent for the publication of pictures of persons depicted in any Image, unless Joerg Hempel Photodesign shall have expressly made written assurances that a consent of the depicted person has already been obtained.
3.7 Joerg Hempel Photodesign makes no warranty that the use of the Materials will not violate the rights of the depicted persons to their own image or the rights of third parties, such as the rights of personality, rights of exploitations, etc. If any third party should make a legal claim against the customer in connection with the use of the Materials, the customer must promptly notify Joerg Hempel Photodesign to agree on further legal measures to be taken.
4.1 Complaints concerning the contents of Materials are to be communicated to Joerg Hempel Photodesign promptly after receipt, either by telephone or by telefax and within 3 days in writing.
5.1 Claims for damages against Joerg Hempel Photodesign with respect to any delivered Materials are excluded, except in the case of intentional infliction of damages or gross negligence.
5.2 The customer is liable for any injury to the Materials until returned to Joerg Hempel Photodesign. If an Image, during the time that it is within the possession and control of a customer, is damaged so that it can no longer be used or is lost, the customer shall be responsible for damages (compare also the appendix).
5.3 Should a slide be taken out of its frame or the lettering on the frame be made illegible, the customer is responsible for restoring it to its original condition. In any case, the customer shall be responsible for the cost of the restoration.
5.4 Joerg Hempel Photodesign reserves the right to make additional claims for damages against the customer.
6. Copyright Notice; Complementary Copies
6.1 Joerg Hempel Photodesign expressly requires a copyright notice in such a manner that there can be no doubt as to the identity of the copyright holder, the agency and the relationship to the particular Image involved. The customer shall cause the following copyright notice to appear on the photograph or directly next to the photograph, © Joerg Hempel Photodesign. Any exceptions (for example, if used for commercial purposes) requires the prior written consent of Joerg Hempel Photodesign.
6.2 Should such copyright notice not be provided, Joerg Hempel Photodesign shall be entitled to a surcharge equal to the amount of the agreed fee.
6.3 The customer must provide Joerg Hempel Photodesign with two complete copies within two weeks of publication, without cost to or demand by Joerg Hempel Photodesign.
7.1 Every use of the Materials shall be subject to a payment of a fee, including without limitation, when used in working documents such as presentations, market tests, drawings, cartoons, or layouts, or the use of any aspect of an Image as a component of a new picture, whether by photomontage, photocomposing, electronic composition or similar technical means.
7.2 The fee shall be agreed prior to use. The amount of the fee shall depend on the manner and extent of usage. The customer shall provide all information necessary for such purposes.
7.3 Each fee agreement shall apply solely for the specifically described purposes and scope of use within the particular language area. Every use over and above that agreed upon shall require a new fee agreement.
8. Charges, Costs and Postage
8.1 Every delivery of Materials shall be charged to the customer, and the fees shall be determined according to the manner and extent of the work required of Joerg Hempel Photodesign. The minimum fee charge is EUR 40.00.
8.2 Extensive research work shall be invoiced separately.
8.3 Postage air freight and courier charges shall be borne by the customer. The same shall apply for photographic and reproduction costs.
9. Payment Terms
9.1 Fee and cost invoices, unless otherwise agreed, are always payable within 30 days upon receipt, in the stated amount without deduction. In the case of late payment, the customer shall be obligated to pay interest at a rate five percentage points (5%) over the then applicable discount rate of the Deutsche Bundesbank.
10. Press Code; Indemnification
10.1 The customer is required to observe the basic journalistic principles of the German Press Council (the Press Code) and the rights of third parties (personality rights, exploitation rights, etc.). In the event the customer shall violate this obligation, the customer shall be responsible for all claims and damages arising therefrom and shall indemnify Joerg Hempel Photodesign from such claims of any third party.
11. Partial Invalidity, Venue, Applicable Law
11.1. As long as both sides are qualified merchants, the place of jurisdiction and performance is Cologne, Germany.
11.2. In the case of deliveries to non-commercial customers who are not residents of Germany, Cologne shall likewise be the place of venue of any dispute.
11.3 The laws of the Federal Republic of Germany shall be applicable hereto.
11.4. Should one regulation of these supply and business terms be invalid, the validity of the remaining regulations remains unaffected.
Appendix (Flat rate compensation):
Flat rate compensation in case of damage, destruction/loss colour transparencies, colour prints, negatives:
a) in the case of light damage allowing further use EUR 150.00
b) in the case of heavy damage allowing limited further use EUR 300.00
- transparencies up to 6 x 9 cm EUR 500.00
- transparencies 9 x 12 and 13 x 18 cm EUR 1,000.00
- transparencies up to 18 x 24 cm EUR 3,000.00
- duplicates EUR 150.00
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