License Agreement for Photos

1. Scope of application

The following license agreement supplement the Terms of Service and apply to all photograph downloads and to the use of the photographs by the downloader.

2. Basic License

(1) The Basic License grants the right of duplication, distribution and publication of the photograph for private and commercial purposes as part of designs and layouts as well as in journalism and press work.

(2) The photograph shall be deemed part of a design or layout if it is used for artistic purposes and in conjunction with text or other graphics and where the value of the product is not generated solely by the photograph to a predominant extent (cf. sections 2.2 (1) a and 3.3).

(3) The use of the photograph in journalism relates to editorial work with text where the photograph is used for explanatory or illustrative purposes or to provide information.

(4) The use of the photograph in press work relates to its usage in connection with text on various subjects, such as products, services, brands or organisations.

(5) PHOTOCASE grants the downloader a non-exclusive, unlimited, worldwide, non-sublicensable and non-transferable right to use the photograph under the terms of the Basic License (section 2). The photograph may be edited or changed. PHOTOCASE or the photographer or the rights holder (hereinafter referred to as "Photographer") hereby reserve the right to all other rights to, or in connection with, the photograph.

(6) The photograph may be used for various purposes under the Basic License, including the following:

• Screen design (e.g. websites, apps, games, software)
• Templates, themes, collages, illustrations, layouts
• Printed products (e.g. flyers, brochures, leaflets, catalogues)
• Advertising materials (e.g. stickers, business cards, notepaper, mugs, bags, mouse pads, posters, postcards, mailshots)
• Print and digital media (e.g. newspapers, magazines, covers for books, music and films)
• Product packaging (e.g. boxes, labels, envelopes)
• TV, video and film productions
• Online advertising (e.g. banner advertisements)
• Social media content (e.g. posts & cover pictures on Facebook, Youtube, LinkedIn, Twitter, Instagram, WhatsApp)
• Editorial articles, press releases and presentations

It should be noted that there are restrictions (cf. section 2.2) in connection with certain products (e.g. templates, products where the value is generated solely by the photograph to a predominant extent, printed products in runs of over 500,000) and that extended rights are required for their lawful use (cf. section 3).

2.1 Consent requirements

(1) The use of the photograph in the following contexts shall be subject to the prior consent of the Photographer:

• sexuality, adult content/entertainment
• pharmaceutical products, birth control products, psychotropic drugs and dietary supplements
• recreational drugs, tobacco and alcohol
• illnesses
• crime

This consent shall be deemed to have been given provided that the relevant sensitive subject has been permitted in the image information.

(2) The use of the photograph in a religious context or to canvass for votes or for political party ends shall be subject to the prior consent of the Photographer if one or more persons are shown in the photograph. This consent shall be deemed to have been given provided that the relevant sensitive subject has been permitted in the image information.

(3) The prior consent of the Photographer shall also be required if a person shown on the photograph is given a certain identity or ascribed certain words to say (quotes, testimonials, etc.).

2.2 Inadmissible usage

(1) The photograph may not be used for the following purposes under the terms of the Basic License but usage can be enabled with the acquisition of extended rights pursuant to section 3:

• The duplication, distribution and publication of the photograph by itself and not forming part of a design, layout, editorial piece or press work. This most notably includes photograph databases and related collections but also products like posters, postcards, e-cards, articles of clothing, mouse pads, mugs and similar products on which the photograph is entirely or primarily shown without any text or other graphics and the value of which is generated solely by the photograph to a predominant extent.
• The use of the photograph as part of templates for digital or printed products, such as websites, presentations, postcards, posters and similar items, with the aim of allowing third parties to use it for their own products bearing the photograph.
• The use of the photograph on printed products in a print run of more than 500,000.

(2) Moreover, the photograph may not be used in connection with extreme content and views which would be detrimental to the average member of the public. Such uses include but are not limited to offensive, defamatory, racist, gratuitously violent, pornographic or other illegal content.

2.3 Acknowledgement of copyrights owners and sources

(1) When using the photograph, the downloader shall be required to name the Photographer (Photocase user name) and the source (Photocase). This acknowledgement must relate clearly to the photograph, e.g. it must be on the picture or in the imprint with reference to the specific place of use. An acknowledgement of the following kind would be acceptable: "Name of Photographer / photocase.com"

(2) When used in online contexts, the acknowledgement may be accompanied by a link to the PHOTOCASE website.

(3) A photograph may also be used without acknowledging copyright owners or sources if the extended rights are acquired (cf. section 3.2).

2.4 Assignment of usage rights

(1) By way of derogation from the provisions set out in section 2 (5), the right to use the photograph may be transferred to third parties (e.g. client/customer) if the third party is entered in PHOTOCASE as a new license holder and the third party duly observes the PHOTOCASE license conditions. The downloader shall be required to make the third party aware of the PHOTOCASE license conditions. On assigning the usage rights to the third party, the rights of the downloader shall expire unless the downloader purchases a new license to use the photograph.

(2) In the context of press work, the photograph may also be made accessible to third parties, by way of derogation from section 2 (5), if the photograph is only used by the third party in connection with the relevant press work and without infringing the rights and duties arising from the PHOTOCASE license conditions. The downloader shall be required to make the third party aware of the PHOTOCASE license conditions.

2.5 Use of Social Media

The photograph may be used on social media sites like Facebook and Facebook Messenger, YouTube, Instagram, Twitter, Pinterest, LinkedIn, Snapchat, WhatsApp, Vimeo and other social media sites, provided that the conditions of use of the relevant social media site do not include any policy whereby the operator is granted exclusive rights of use, other exclusive rights, or property rights to the photograph.

3. Extended rights of use

The following extended rights of use may be acquired by the downloader:

3.1 Usage without acknowledgement of copyright owners and sources

By way of derogation from section 2.3, the downloader shall not be required under the Basic License to acknowledge the Photographer and PHOTOCASE as the source of the photograph.

3.2 Use for printed materials in a print run of 500,000 or more

By way of derogation from section 2.2 (1) c, the limit under the Basic License to a maximum print run of 500,000 shall no longer apply to printed materials.

3.3 Use of the photograph for merchandising and templates

(1) By way of derogation from sections 2 (2) and 2.2 (1) a and b, this option allows:

• The use of the photograph as part of products for resale such as calendars, postcards, mouse pads, mugs, stickers, posters, art prints, e-cards, desktop wallpaper and similar articles where their value is generated solely by the photograph to a predominant extent. Printed items are limited in quantity of up to 500,000. Should the articles be produced in greater quantities, the extended license for use for printed materials in a print run of 500,000 or more must be obtained additionally.
• The use of the photograph in templates and document masters for websites, presentations, newsletters, postcards, greeting cards, invitations, posters, covers, graphic charts and similar items which may be used as a basis by third parties to make their own products of which the photograph still constitutes a part.

(2) Use in photograph databases and comparable collections is still not permissible, however.

4. Prosecution of statutory violations

(1) It is in the legitimate interest of PHOTOCASE to ensure that neither the downloader nor the third party should use the photograph in a way which infringes the usage rights which have been granted or without actually acquiring usage rights. PHOTOCASE will therefore be within its rights to prosecute infringements of copyright and ancillary rights to the photograph in its own name and to assert the relevant rights and claims.

(2) In case of breach of the license agreement PHOTOCASE will be entitled to order the downloader to stop perpetrating the act of violation. This instruction must be followed immediately.

(3) The downloader undertakes to pay a fine of EUR 250.00 for each instance in which a photograph provided by PHOTOCASE is used in contravention of the license agreement. The fine shall not affect the statutory rights of PHOTOCASE to assert other claims and to claim further damages. In the event that PHOTOCASE claims damages, the fine shall be credited against the damages.

5. Warranty

5.1 Warranty for material defects

(1) PHOTOCASE guarantees that the nature and quality of the photograph will be as agreed.

(2) The warranty period for commercial downloaders (section 14 of the German Civil Code (BGB)) is one year starting from the time at which the photograph is downloaded. The above short period of warranty shall not apply to claims for damages based on defects if PHOTOCASE is guilty of malicious intent or fraudulent concealment of a defect, nor shall it apply to claims for damages based on defects in cases of injury to life, limb or health or in case of claims under product liability law.

(3) The commercial downloader shall be required to inspect the photograph with the diligence of a prudent businessman immediately after download and to notify PHOTOCASE immediately of any defects. Should the commercial downloader neglect this duty of immediate notification, the photograph shall be deemed to have been approved unless the defect would not have been visible on inspection. Any such defect which is identified at a later date must be reported immediately on its discovery, failing which the photograph shall also be deemed to have been acceptable in spite of this defect. Notification of defects must be given in writing with an exact description of the defects. The deadline for notification of defects is two weeks from the time of download, or from the time of discovery in the case of concealed defects, unless the commercial downloader can prove that it was impossible to meet the deadline in the routine course of business.

5.2 Warranty for deficiencies in title

(1) PHOTOCASE will only extend warranty for deficiencies in title if and insofar as the use of the photograph is within the usage rights restrictions. The downloader shall be solely responsible for knowing whether the photograph can also legally be used in contexts which have nothing to do with the photograph per se (e.g. in cases where the legality of an advertisement is questioned under competition law or in case of infringements of trademark law provoked by the use of the photograph).

(2) In cases covered by the warranty, the liability period for commercial downloaders is one year from the time of downloading the photograph. Section 5.1 paragraphs 2 and 3 shall apply analogously.

(3) The parties shall notify each other in writing immediately of any claims for breach of property rights or other rights made against them.

6. Liability of PHOTOCASE

(1) Claims for damages or claims for reimbursement of expenses incurred in vain which are asserted by the downloader shall be governed by the above clause regardless of the legal nature of the claim.

(2) PHOTOCASE will be fully liable for damages arising from injury to life, limb or health due to wilful or negligent breach of duty on the part of PHOTOCASE. Concerning other liability claims, PHOTOCASE will only be fully liable for absence of the warranted quality characteristics and for wilful intent and gross negligence.

(3) PHOTOCASE will only be liable for slight negligence in case of a breach of such duty as is fundamental to the actual fulfilment of the contract, the neglect of which would jeopardise the accomplishment of the purpose of the contract and on the discharge of which the downloader may routinely rely (cardinal duty). In case of breach of a cardinal duty, liability shall be limited to such damages as are reasonably foreseeable or typical under such contracts. This shall also apply to lost profit and unrealised savings. No liability will be accepted for other remote losses and consequential harm caused by defects.

(4) The above provisions shall also apply in favour of employees, representatives and vicarious agents of PHOTOCASE.

(5) Statutory liability under the law on product liability shall remain unaffected.

(6) If the downloader is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, any liability claims against PHOTOCASE shall be subject to a limitation period of one year.

7. Final provisions

(1) PHOTOCASE reserves the right to make changes to the license agreement. These changes shall not affect the fundamental contractual duties to be discharged by the parties. The downloader will be given at least two (2) weeks' notice of the amended provisions before they enter into effect. If the downloader does not dispute the validity of the new license agreement within two (2) weeks (of receipt of said notification), the amended license agreement shall be deemed to have been accepted. PHOTOCASE will issue a separate notification advising of the import of the time limit, the right of objection and the legal consequences of remaining silent in the event of amendments.

(2) Any amendments or supplements to the license agreement must be made in writing. The requirement for written form shall also apply to the revocation of the requirement for written form itself.

(3) The downloader shall not be entitled to set off against claims of PHOTOCASE unless his own claims are undisputed or recognised by declaratory judgement.

(4) The laws of the Federal Republic of Germany shall apply to the exclusion of all international and supranational (contract) legislation, especially the United Nations Convention on Contracts for the International Sale of Goods. The binding contract language shall be German.

(5) If the downloader is a merchant, a legal entity under public law or a special fund under public law, the registered office of PHOTOCASE shall be the place of jurisdiction for all disputes arising from the contract.

(6) Should individual clauses of the license agreement be or become invalid, this shall not affect the validity of the other clauses. The invalid provision shall then be replaced by a clause which comes closest to the commercial objective of the parties. The same shall apply if the license agreement contain loopholes.