General terms and conditions of delivery and business

I. General terms

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 fabpic`s orders, offers, deliveries and services.
2. They shall be deemed to be binding on both Parties upon acceptance of fabpic´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, he or she 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 fabpics agrees in writing to be bound by them.
4. The General Terms and Conditions shall also apply to all of fabpics 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 fabpics constitutes copyright material as defined in § 2 (1) No. 5 of the German Copyright Act.
3. The photographic material provided shall remain the Photographer’s property notwithstanding the fact that damages may have been paid for.
4. 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.
5. 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 fabpic´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, 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 fabpics’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 him or her to any third parties unless these are members of his or her 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 fabpics be included in such a way that it can be clearly allocated to the picture in question. The copyright information has to include the photographer´s name and the name of the agency (©photographer/fabpics)

IV. Liability

fabpics 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.

V. Fees

1. The agreed fee shall apply. If no fee has been agreed upon, it shall be determined on the basis of the prevailing list of photographic fees issued by Mittelstandsgemeinschaft Foto-Marketing (MFM). The fee shall be subject to value added tax at the applicable rate.
2. The fee shall by payable for one-time use of the photographic material for the use agreed upon pursuant to III 3. or 2. herein. If the fee is also to cover further use, this shall require written confirmation.
3. The processing fee for the delivery of fabpic’s material will be 25€. The client has to pay material- and shipping costs.

VI. Return of photographic material

1. The photographic material shall be returned in the form in which it was supplied immediately after it has been published or used for the agreed purpose provided that this is no later than three months after the date of delivery; two sample copies of the publication in which the photographic material appears shall be enclosed. An extension to this three-month period shall require the Photographer’s written approval. Digital material has to be deleted.
2. The Customer shall return the photographic material at his or her own cost in standard packaging. The Customer shall bear the risk of loss or damage during transport until the photographic material reaches fabpics.

VII. Penalty, blocking, damages

1. In the event of any unauthorized utilization, use, reproduction or disclosure of the photographic material (i.e. without the Photographer’s consent), the Customer shall be liable to pay a penalty equaling five times the applicable fee for each individual instance, it being understood that this shall not operate to restrict any other remedies available to the Photographer.
2. If the copyright notice is missing, incomplete, in the wrong position or not possible of being clearly allocated to the picture in question, a surcharge of 100% of the agreed fee shall be payable.
3. A penalty of 50% of the agreed fee shall be payable if no sample copy is provided or the statement of account does not include a sample copy or details of which picture was used in what place and in what publication.
4. The payments anticipated in VII of these General Terms and Conditions shall not give rise to any rights of utilization.

VIII.

1. The contractual relationships anticipated by these General Terms and Conditions shall be subject to German law including in the case of deliveries to foreign destinations.
2. Any additions or modifications to these General Terms and Conditions shall be in writing only.
3. 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.
4. The place of fulfillment and the legal venue shall be Cologne in cases in which the Customer is a full merchant as defined by German commercial law.