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General Terms of Use - Photocase

Status: June 2010

1. Provider, Scope of Application

1.1 The provider and operator of the online service (hereinafter referred to as "the Service," the "platform" or "PHOTOCASE") and thus the contractual partner of the Users of the Service (hereinafter referred to as "User") is Photocase Addicts GmbH, Gormannstraße 14, 10119 Berlin, Germany (hereinafter referred to as "PHOTOCASE").

1.2. The following General Terms of Use contain the basic rules for using PHOTOCASE and governing all legal transactions and acts of similar nature effected between the User of the service and PHOTOCASE. They apply exclusively. The User’s terms of business are hereby refuted insofar as they contain provisions diverging from or conflicting with the Terms of Use given below.

2. Definitions

  • "User" shall mean any individual person or legal entity or association of persons registered with PHOTOCASE.
  • "Photographer" shall mean any User placing a photograph on PHOTOCASE.
  • "Downloader" shall mean any User downloading a photograph placed on PHOTOCASE.

3. Registration, User Account, Conclusion of Contract

3.1 Apart from the exception to which reference is made in Item 5.3, registering on PHOTOCASE requires the User to open an account. When registering the User is bound to provide complete and truthful information. If subsequent to registration any of the data collected changes, then the User must update the particulars in his/her user account without delay.

3.2 On registering, the User chooses a username and a password (referred to hereinafter as "Access Data"). Usernames are not permitted if their use constitutes an infringement of third-party rights, in particular the right to use a name or mark, or which otherwise break the law or are contrary to public policy. The User must keep his/her Access Data secret and protect it from unauthorised third-party access. If the User mislays his/her Access Data, or if he/she discovers or suspects that his/her Access Data is being used by a third party, then he/she must immediately notify PHOTOCASE to this effect.

3.3 After sending off the registration form, the User receives an email from PHOTOCASE containing a confirmation link and an activation code, and again listing the User’s main particulars. If the User clicks on the confirmation link, this constitutes an offer to conclude a license agreement with PHOTOCASE. PHOTOCASE accepts the offer by activating the User’s account. However, PHOTOCASE reserves the right at all times to reject the User’s registration without stating the reasons.

3.4 Using PHOTOCASE is not permitted for minors and individuals who have no or only limited legal capacity.

4. Object of Service

4.1 PHOTOCASE offers downloaders an online database of stock photographs with high visual and technical standards that can be downloaded and licensed, or that can be acquired in print format (see here for the license terms).

4.2 On PHOTOCASE, photographers can present their photographs and earn money by licensing them. To this end, the photographer grants PHOTOCASE on the basis of the Photographer license Agreement those rights of use that PHOTOCASE needs for issuing licenses to downloaders. PHOTOCASE subsequently gives each photographer a share in the revenues generated with his/her photographs.

5. Downloading Photographs, Acquiring Download Credits

5.1 For downloading photographs, the User needs download credits that can be bought on the platform. For this purpose, PHOTOCASE provides a page on the Internet (Download Credit Shop) where Users can buy download packages on various terms. All the prices quoted in the Download Credit Shop are final prices including any statutory turnover tax payable.

5.2 Any subscription for download credits that is bought in the Download Credit Shop has a minimum term of 3 months, after which it is renewed automatically for one month at a time. The subscription fee is settled on a monthly basis. After the minimum term, the subscription can be terminated at any time by giving written notice before the end of the month.

5.3 In addition to acquiring download credits, Users can also directly license individual photographs. In this case, a license is acquired by making immediate payment in the applicable currency instead of by way of download credits. In derogation from Item 3, the User’s prior registration is not required for acquiring individual licenses.

5.4 Even if PHOTOCASE offers various modes of payment (for instance: credit card, direct debit, micro-payment e.g. via PayPal), it shall not thus be bound in any respect. Moreover, PHOTOCASE reserves the right not to offer all Users all the modes of payment that are basically provided. The standard terms and conditions of the respective payment service provider apply to the actual payment transaction and to ownership of the receivables.

5.5 Users purchasing download credit packages or download subscriptions shall be issued with a proper invoice by PHOTOCASE, indicating any statutory turnover tax incurred.

6. Inadmissible Content & Conduct

Each User bears sole responsibility for all the content (see. Item 6) that he/she posts on PHOTOCASE. The User undertakes vis-à-vis PHOTOCASE not to place any illicit content on PHOTOCASE (such as the content in a user profile, contributions intended for the forum and comments on photos), and in particular no content which:

  • are of a defamatory or derogatory nature;
  • infringe another person’s right to protection of privacy or other personal rights, such as the right to one’s own picture, in particular third parties’ rights to their own picture;
  • infringe other parties’ copyrights, ancillary copyrights or trademark rights;
  • are liable to civil action or prosecution on other grounds.

PHOTOCASE reserves the right to erase content if and as the case arises.

7. User’s Liability, Release & Discharge

If any claims are brought against PHOTOCASE by third parties as a result of a culpable breach of duty by the User under Item 6 above, the User shall fully release and discharge PHOTOCASE on first demand from all and any liability and costs, including any procedural costs and any damages having to be paid. PHOTOCASE shall immediately notify the User about any claims filed, and insofar as is required and/or possible by law, it shall give the User an opportunity to ward off the claim being asserted.

8. PHOTOCASE’s Liability

PHOTOCASE shall be liable in accordance with statutory regulations, with the following limitations: if a registered User sustains any damage due to loss of data, then PHOTOCASE shall not be held liable insofar as the damage would have been avoided if the User had stored all the relevant data in its entirety at regular intervals. Provided any damage occurring does not involve mortal injury, physical harm or health damage or any guarantee that has been specifically assumed, and as long as only slight negligence applies, PHOTOCASE’s liability for any damage which is unforeseeable or atypical for the type of contract is excluded.

9. Term & Termination of Agreement on Use

9.1 The agreement on use is concluded for an indefinite period. Routine notice of termination may be given by either party at any time. PHOTOCASE and the User reserve the right to give immediate extraordinary notice. In particular, PHOTOCASE may give extraordinary notice in the event of any material breach of these General Terms of Use. In all events, notice terminating the agreement on use must be given in text form.

9.2. As a more lenient measure in the event of a breach of these Terms of Use, PHOTOCASE may also temporarily deactivate the User’s account in order to urge him/her to comply with his/her obligations. The User shall be notified in writing about any such deactivation of his/her account.

9.3 In the event of his/her user account being deactivated or of PHOTOCASE giving notice for important cause, the User concerned shall be prohibited from re-registering and opening a new user account with PHOTOCASE, until such time as PHOTOCASE gives express prior approval.

9.4 PHOTOCASE shall delete the registered User’s account when notice of termination takes effect.

10. Privacy Policy

Further information on data protection and data safety can be obtained from PHOTOCASE’s Privacy Policy.

11. Amendments to the General Terms of Use

PHOTOCASE reserves the right to amend these General Terms of Use at any time. The amendments or new General Terms of Use shall be sent to registered Users by email and shall be deemed agreed unless the User objects to their application within 14 days of receiving the email. The objection must be filed in writing, i.e. by email at least. In its email, PHOTOCASE shall expressly draw the User’s attention to the possibility of filing an objection, the period allowed for doing so, and the legal consequence of failing to respond. If the User objects, then both PHOTOCASE and the User shall have the right to terminate the license agreement by issuing routine notice.

12. Governing Law

Both the contractual relationship between PHOTOCASE and the registered User and these General Terms of Use shall exclusively be governed by the laws of the Federal Republic of Germany, excluding provisions on conflict of laws.

13. Text of the Contract

PHOTOCASE does not provide a separate text of the contractual agreement underlying either these General Terms of Use or the Photographer license Agreement or the Downloader license Agreement. The actual substance of any contract reached with PHOTOCASE therefore ensues from these General Terms of Use in combination with the identity of the User and of PHOTOCASE as contracting parties, along with the subject-matter of the agreements reached. Thus in this respect, the “text of the contract” is not specifically stored by PHOTOCASE in relation to each individual User.

© Copyright 2010 Photocase. All rights reserved.

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