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Downloader License Agreement - Photocase

Status: June 2010

1. Scope of Application

The following License Terms for Downloaders apply to all photo downloads, to the Downloader’s usage of the photographs, and to all and any related declarations of intent and agreements by and between PHOTOCASE and the Downloader.

2. Basic License

Photographs may be used as follows under the Basic License that PHOTOCASE offers for each photograph:

2.1 The Basic License entitles the downloader to download, i.e. store the photograph, and to use it in his/her private sphere as well as for commercial purposes in accordance with this Item 2.1. In addition, the Basic License permits using the photograph as an element in "original artwork" or in "an editorial context." "Original artwork" within the meaning of this provision means new works created by the downloader of which the relevant photograph is an integral part, such as collages, websites, print products, advertising media and materials for promotional purposes. In "an editorial context” means using the photograph in print and online articles laid out editorially and prepared journalistically, i.e. publications which are text-based and make use of the photograph for explanatory or illustrative purposes, or for conveying information, or for the sake of the text’s graphic design. Thus the photograph may be used in TV and video clips, and/or for designing book covers and sound carrier covers. The downloader is also always allowed to process the photograph when creating original artwork or when using it in an editorial context within the meaning of this Item 2.1.

Under the Basic License, subject to Items 2.2, 2.3 and 2.4 below, the original artwork thus created, or the content containing the photograph that has been thus edited and prepared, may subsequently be comprehensively exploited by the downloader, namely by means of reproduction, distribution, publication and otherwise. PHOTOCASE grants the Downloader in perpetuity and without any restriction in terms of territory the non-exclusive rights of use in the photograph which are required for this purpose.

2.2 In the following cases, the Downloader’s legitimate use of the photograph is contingent on obtaining consent directly from the originator of the photograph:

  • Using the photograph in a context involving narcotics, crime or diseases, or in content of a sexual, pornographic, politically extreme and/or religious nature, or in any other operations or content potentially offensive to an average member of society, as well as for advertising tobacco products and/or alcoholic beverages, pharmaceuticals, food supplements (such as e.g. slimming products), birth control products and/or psychiatric drugs; this applies especially and in particular with regard to the persons shown on the photograph.
  • If a certain identity is given to a person depicted on the photograph (for example, pictures giving a literal quotation or a testimonial attributed to any of the persons shown).

The above provisions also apply mutatis mutandis if the actual photograph concerned is processed or otherwise altered in any way.

2.3 The following types of usage are not permitted under the Basic License. However, should the necessity arise, there is a possibility of acquiring Extended Licenses in relation to these specific types of usage that are otherwise not permitted:

  • In cases where original artwork or use in an editorial context within the meaning of Item 2.1 does not apply: merely copying and subsequently using a photograph, merely distributing a photograph or delivering it to third parties – including clients and associated companies – in some other form (e.g. resale, provision-on-demand), making a photograph available to the public, and exhibiting, displaying, performing, broadcasting or otherwise exploiting a photograph. This includes in particular and above all products exclusively or mainly depicting the photograph, i.e. on which the photograph is used without any textual reference, such as being linked to script or other graphic elements. This involves in particular photo databases, photo catalogues, CMS systems and compilations of similar kind, as well as use for depiction on posters, postcards, e-cards, items of clothing, mousepads, mugs or similar items.
  • Copying, distributing and enabling public access to original artwork, in order to make it available to a large number of third parties for their own purposes. Similarly, making original artwork available to more than one third party, for instance by making a website template available to the public for downloading, is not permitted. If in any doubt, the downloader must contact the Photographer concerned.
  • Distributing print publications and original artwork in a physical form, if the number of items put into circulation exceeds 250,000.

Moreover, using the photographs in connection with content that is offensive, defamatory, racist, pornographic or glorifies violence, or in connection with any other manner of illegal content, is not permitted on principle. This applies in particular with regard to the persons depicted on the photograph.

2.4 Naming Authors & Sources on Photographs

When using a photograph, the Downloader must indicate the photographer as the originator by stating the latter’s name or – if this is not possible – the PHOTOCASE user-name in the imprint or by the picture (copyright notice).; at the same time PHOTOCASE is to be named as the source of the photograph (source notice). When a photograph is used in online presentations, the notice must contain an embedded link to the PHOTOCASE website. An admissible copyright and source notice would therefore read: "Photograph: [name of photographer] / Source: PHOTOCASE [appropriately linked in online presentations]”.

However, photographs may also be used without a copyright notice and without stating the source, provided an Extended License to this effect is acquired (if available).

3. Extended Licenses

If and insofar as Extended License Options are also available for individual photographs, the content and scope of the additional rights of use shall be as follows:

3.1 License for Large-Scale Circulation

This License permits use of the photograph as provided for under the Basic License pursuant to Item 2. In derogation from Item 2.3 of the Basic License however, the limitation to a maximum number of items put into circulation does not apply.

3.2 License Omitting Copyright/Source Notice

This License permits use of the photograph as provided for under the Basic License pursuant to Item 2. In derogation from Item 2.4 of the Basic License however, the downloader is not obliged to name the Photographer as the author and/or PHOTOCASE as the source of the photograph.

3.3 Merchandising License

This License permits use of the photograph as provided for under the Basic License pursuant to 2. In derogation from Item 2.3 of the Basic License pursuant to Item 2 of the Basic License however, the downloader is furthermore permitted to use the photograph on products solely or mainly depicting the photograph, and to distribute same to third parties commercially in accordance with the following provisions. The following uses are permitted under this Merchandising License:

Printed products:

  • Manufacture and distribution of calendars, postcards, greeting cards, mousepads, mugs, stickers, office supplies and similar merchandise, for up to 10,000 items.
  • Manufacture and distribution of items of clothing and fashion accessories, toys and entertainment goods, for up to 5,000 items.
  • Manufacture and distribution of posters, bills, art prints and similar items, for up to 5,000 items; however, original artwork within the meaning of Item 2.1 of the Basic License has to be created – simply printing the photograph is not covered by this.

Electronic products:

  • Using the photograph in email, website and document templates, and for e-cards and wallpapers.

If more than the stated number of items is to be manufactured and distributed, then an extra license for the photograph required may be taken out in accordance with these terms. However, using the photograph in photo databases, photo catalogues, CMS systems and similar compilations is excluded here as well.

4. Suing for Infringements, Contractual Penalty, Increased Fee

4.1 PHOTOCASE has a legitimate interest in ensuring that the photographs’ use by downloaders or third parties does not infringe the rights of use that have been granted and that no photographs are used without acquiring a license. PHOTOCASE is therefore authorised to also take action in its own name to sue for any infringements of copyright or ancillary copyright in the photographs, and to assert any rights and claims accordingly.

4.2 In the event of a photograph that has been downloaded from PHOTOCASE being culpably used contrary to the terms of the license, or even without a license being acquired at all (for instance, if a photograph is made available to multiple third parties for their own purposes, breaching the Basic License), the Downloader undertakes to pay a minimum contractual penalty of EUR 5,000 (in words: five thousand Euros) in each and every instance, excluding pleas of continuation in a related context. This contractual penalty shall also be incurred if any breach is committed (“merely”) by the Downloader’s staff or vicarious agents.

PHOTOCASE’s right to assert other claims exceeding this amount shall remain unaffected by the obligation to pay a minimum contractual penalty. However, the minimum contractual penalty shall be counted towards any claims that are only asserted to the extent that they exceed the minimum contractual penalty.

5. Guarantee

5.1 Guarantee for Material Defects

5.1.1 PHOTOCASE guarantees that the object of performance has the agreed characteristics.

5.1.2 The guarantee period lasts one year and commences when the photograph is downloaded. Said brief guarantee period does not apply to compensation claims for material defects, if PHOTOCASE is at fault for intent or for the fraudulent concealment of a defect. Moreover, it does not apply either to compensation claims for material defects in cases involving mortal injury, physical harm or health damage, or for claims under product liability law.

5.1.3 Immediately after downloading, the Downloader is obliged to inspect the photograph with all due care required in prudent business, and if any defect is evident to immediately report it to PHOTOCASE. If the Downloader fails to report the defect, the photograph shall be deemed approved, unless a concealed defect is involved. If any such defect is noticed at some later date, then it must be reported immediately on its discovery; otherwise the photograph shall be deemed approved, also as far as the defect is concerned. Defects must be reported in writing, including an exact description of the defect. The period allowed for reporting defects is two weeks as from the date of downloading, and in the case of concealed defects two weeks as from the date of their discovery, unless the Downloader proves that it was not possible to meet the deadline, even on heeding due business procedure.

5.1.4 In addition, statutory guarantee rights for material defects shall also apply.

5.2 Guarantee for Defects in Title

5.2.1 PHOTOCASE shall only assume a guarantee for defects in title if and insofar as use of the photograph does not exceed the license that has been granted. It shall be the Downloader’s exclusive responsibility to ascertain whether the photograph’s use is permissible in contexts that have nothing to do with the photograph itself (for example, whether an advertisement is admissible under competition law, or whether use of the photograph breaches trademark law).

5.2.2 If a guarantee has to be given in any such case, the guarantee period shall be one year commencing on the date on which the photograph is downloaded. Item 5.1.2, Clauses 2 and 3 apply mutatis mutandis.

5.2.3 The parties shall immediately notify each other if they are sued for an infringement of protective rights or if any other rights are claimed.

6. PHOTOCASE’s Liability

6.1 PHOTOCASE shall be liable in accordance with statutory regulations for any loss or damage sustained by the Downloader that is wilfully caused or is due to gross negligence, or is due to the object of performance lacking a warranted characteristic (guarantees are expressly warranted characteristics), or is due to a culpable breach of cardinal duty (essential contractual obligations), or results from any mortal injury, physical harm or health damage that has been culpably caused, or for which provision is made under product liability law.

6.2 Cardinal duties are contractual obligations enabling due implementation of the contract in the first place, performance of which the contractual partner may always rely on, and which if breached by the other party will jeopardize attainment of the contractual purpose.

6.3 If a cardinal duty is breached, liability – insofar as the loss or damage is merely due to slight negligence and does not involve mortal injury, physical harm or health damage – shall be limited to the loss or damage typical for the type of contract, occurrence of which might be anticipated in connection with the provision of services such as those hereunder.

6.4 In all other respects, liability for whatsoever legal cause – both on the part of PHOTOCASE and of its vicarious agents – is excluded.

6.5 If the Downloader’s loss or damage results from a loss of data, PHOTOCASE shall not be held liable insofar as such loss or damage would have been avoided if the Downloader had duly made a complete back-up of all the relevant data at regular intervals.

7. Governing Law

These License Terms for Downloaders and the license agreement for the photographs that is concluded hereunder shall be exclusively governed by German law, excluding provisions of German private international law.

8. Venue

Venue for all and any disputes arising from or in connection with the license agreement for the photographs that is concluded on the basis of these License Terms for Downloaders shall be Berlin, if the Downloader is a registered merchant within the meaning of the Commercial Code, or a public corporation, or a government agency managing public assets. This shall also apply if the Downloader’s place of residence or normal place of abode is moved subsequent to contract closure to some location not covered by the scope of application of the German Code of Civil Procedure, or is unknown at the time when action is brought. Alternatively, PHOTOCASE shall have the right at all times to also sue the Downloader at his/her place of residence or registered location.

© Copyright 2010 Photocase. All rights reserved.

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