General Terms and Conditions of the picture agency MAGROUND GmbH (as at June 2009)
1. The following General Terms and Conditions (subsequently GTC) apply to all business relationships between you (subsequently Customer) and MAGROUND GmbH (subsequently MAGROUND). (When you enter into a business relationship with MAGROUND on behalf of your employer, you are simultaneously confirming that you are authorized to do so and entering into the business relationship on behalf of yourself and your employer.) All quotations, deliveries, electronic transmissions, as well as the assignment of usage rights without exception are subject to change and not binding. Other usage rights agreements must be negotiated separately (individually).
2. MAGROUND operates an online image database. Image material is transmitted exclusively in digital form.
3. The GTC version valid at the time the contract is concluded shall be applicable. Deviating, conflicting, or complementing GTC shall not become part of the contract, even if known to MAGROUND, unless MAGROUND confirms their validity explicitly in writing. In the case of transmission and possible use of electronically transmitted image data, a contractual relationship shall only become established on the basis of these General Terms and Conditions, otherwise the transmitted image data may not be used.
4. Rejection of our terms of delivery shall only take effect if the so-called "low-resolution material" is deleted and this is confirmed to MAGROUND in writing before the high-resolution image material is requested. The rejection of the GTC must be communicated in writing before any usage of the image material. The GTC are deemed to have been taken note of and accepted with the online license purchase, the downloading of any images and/or high-resolution data, or the written acceptance of the quotations.
5. Complaints must be notified by telephone within two working days of receipt of the image material by the Customer and in writing within a further three working days; complaints about technical or other concealed deficiencies must be submitted in writing immediately upon detection, but within two working days of receipt of the image data at the latest. If such complaints are either not submitted at all or not by the deadlines, liability on our part for any incurred or future costs/damages is excluded and reimbursement of the billing amount is excluded.
6. The Customer must indicate the type, scope, and language area of the intended usage at the time of placing the order, at the latest before the technical utilization of the images, and in the case of advertising also the product. Usage of the material is not permitted until MAGROUND has agreed to the planned usage and the communicated purpose. Low-resolution material from the agency website may not be used for publication and distribution on principle. Passing digital material on by electronic data interchange or on data carriers is only permissible if this is required for the utilization of the usage rights granted to the Customer. If the information provided by the customer does not correspond to the actual type of usage, or if the actual usage is not consistent with the information provided by the Customer, the usage consent is deemed not to have been given and MAGROUND is indemnified from claims for damages by third parties; otherwise the provisions of section E of these General Terms and Conditions apply to such cases. The supplied or offered image material/the offered image data may not be modified or processed in any way without MAGROUND's prior written consent.
7. Image material that is being made available always remains the property of the agency/the creator. It is only being made available temporarily and for the purpose of obtaining usage rights within the meaning of the German Copyright Act (UrhG).
1. All usage of our image material is subject to fees. This also applies in cases where an image is used as a basis for drawings, caricatures, recreated photographs, or for layout purposed and customer presentations, as well as where image details are used and become components of a new image by means of montage, photo composing, electronic image carriers and similar methods.
2. Usage fees shall be charged for the usage of the transmitted photographs according to the fee listing valid at the time of usage. Usage consent must be obtained separately in each individual case.
3. Fees are to be agreed before utilization. They depend on the medium, type, and scope of usage that must all be specified. In this context the Customer is obliged to specify precisely the intended purpose, the planned reproduction size, the planned period of usage, and the intended distribution area. If the Customer does not request fee information or if there is no other fee agreement in place, the fee rates applicable at MAGROUND shall be charged automatically. All fees stated in quotations, price lists, and other documentation are net and exclusive of VAT and social security contribution for artists. According to section 24ff KSVG (Artists' Social Security Act), contributions to the Social Security Fund for Artists are payable by the party using the image in addition to the above-mentioned fee / incidental costs. All bills of fees and costs are payable to MAGROUND within one week of receipt of bill without any deduction. If a binding order was placed for image material, the agreed fee shall become payable even if no publication takes place.
4. Any usage exceeding the agreed scope shall be subject to a separate fee. The fees only apply for the one-of use for the specified purchase, scope, and language area. Each further usage shall be subject to further fees and requires MAGROUND's prior written consent. In the event of unauthorized usage and/or passing on of our image material the penalty provisions pursuant to section E. 1. of these General Terms and Conditions shall apply.
5. Exclusive rights or blocking periods need to be agreed separately. Such special agreements are always subject to a surcharge on the basic fee, to be determined by MAGROUND after consultation.
6. As soon as the Customer has communicated that he or she wishes to use the supplied or electronically transmitted image material in its entirety or in part, MAGROUND is entitled to bill the Customer for the granting of usage rights, even if the publication or other usage has not yet taken place.
7. If the intended publication or other usage does not take place, any fee that has already been paid cannot be reimbursed/reclaimed.
8. Fee payments must always be made stating the customer number as well as the image number (Image Ref. No.). If these details are missing, a claim for reimbursement of additional cost may be made, based on the extent of the additional work involved. In addition, the Customer must state precisely which image was used in which publication when settling their account.
9. The Customer undertakes to pay the license fee for the images according to the terms of the bill and these General Terms and Conditions.
10. MAGROUND shall issue the bill and this shall form part of the present GTC. It shall contain the permitted purpose of the selected images in unrestricted form, any restrictions of the license in addition to those stipulated in the GTC, as well as the corresponding license price for said images.
C. Restraint, Liability, Utilization Rights, and Copyrights
1. All image samples are to be treated as originals. On principle, only the usage right in the photographic copyright is transferred. The granting of usage rights does not constitute a transfer of ownership rights or copyrights. This applies in particular to original images that are subject to further copyrights due to their content (e.g. works of visual or performance art). Making any necessary payments relating to the further copyrights as well as obtaining publication permits from collections, museums etc. are the user's responsibility.
2. On principle, usage rights do not come into force until MAGROUND has received the agreed and billed fee. Usage of the images is strictly limited to the use, medium, period, printing method, positioning, image size, publication territory, sector, and other conditions specified in the bill. The granting of exclusive rights and agreement of blocking periods as well as sector protection require a separate agreement as well as a release declaration.
3. We explicitly reserve the right to transfer secondary rights to companies exploiting third-party rights and do not accept clauses according to which the acceptance of a fee would preclude the exercising of further rights; exceptions to this are cases where the orderer/user has been granted exclusive rights in or for the provided image material.
4. MAGROUND does not guarantee any rights whatsoever nor give any guarantees whatsoever regarding the use of names, persons, trademarks, trade dress, nor of registered, non-registered or copyrighted designs, works of art, or buildings that are depicted in the images. Should the Customer require further clarification with respect to the need for additional authorizations for the utilization, the Customer should obtain legal advice at their own initiative.
5. Any release declaration issued by MAGROUND does not incorporate any assurance that depicted persons or the owners of the rights in depicted works of visual or performing art as well as copyrighted designs, works of art, or buildings have granted permission for publication. The Customer is responsible for obtaining the permission of third parties that might be required in an individual case or any required publication authorizations.
6. The image material may not be passed on to third parties (see also section B. 4.). Similarly, the electronic image data may not be stored and/or passed on to third parties. Special cases require our written consent. The Customer is obliged to notify us whether and to what extent he or she might, after all, have duplicated, stored image data, or otherwise created master copies for their own archiving purposes.
7. We assume no liability for any violations of the general rights to privacy of depicted persons or of the copyright of the image creator by usage of the image and/or text contravening the agreement or distorting the original meaning. In the event of such rights being violated, the user alone shall be liable for damages to any third parties.
8. MAGROUND does not give any guarantees, neither explicit nor implicit, with respect to the images, including, without restriction, any tacit guarantees for marketability and suitability for a specific purpose. Apart from the liability that cannot be excluded or limited by law, MAGROUND cannot be held liable by the Customer nor any other natural person or legal entity for general, punitive, special, indirect claims for compensation arising from the utilization or incidentally, for lost profit or other damages, costs, or losses arising from the utilization of the images by the Customer or by other means, even if MAGROUND has been informed about the possibility of such damage, costs, or losses.
9. The images are only made available temporarily for the agreed type of usage. Subsequently, the images must be deleted from the Customer's electronic storage systems. Unused images must be deleted from the Customer's electronic storage systems within 30 days of delivery.
10. On principle, electronic archiving is only permitted to take place at the Customer's premises and only for the duration of the legitimate usage. Storage of the image data in online databases or other electronic archives that are accessible to third parties require an additional written agreement between MAGROUND and the Customer. The same applies to the storage of the image data on floppy disk, CD-ROM, or any other data carriers suitable for permanent archiving.
11. Digital images may only be passed on by electronic data interchange or stored on data carriers if MAGROUND has been informed in advance about the type and scope of the planned data transmission and has approved it. The display of digital images on screens and the production of hard copies (printing/filming) also require MAGROUND's prior consent.
12. Any possible deviations and inaccuracies of the GPS data shall not justify any claims for compensation by the Customer against MAGROUND as long as they are within the range of standard system-related deviations and were not not caused by a deliberate or grossly negligent breach of duty on the part of MAGROUND or its vicarious agents.
13. Image material and/or GPS data may only be passed on to third parties, including other editorial offices of a publishing company or subcontractors, with MAGROUND's explicit written consent.
14. If the Customer passes the image material or the obtained GPS data on to third parties with or without authorization, the Customer shall be liable for the incurred costs, penalties, and usage fees. The Customer shall be responsible for any wrongdoing of the third party to the same extent as if it was his or her own.
Contractual warranty claims by the Customer on the basis of deficiencies in the image material or the GPS data are excluded unless they are based on a deliberate or grossly negligent breach of duty on the part of MAGROUND or its vicarious agents.
D. Copyright/Specimen Copies
1. When the image material is acquired digitally, the photographers' names as well as the name "MAGROUND.COM" must be linked electronically with the image data. The Customer must ensure through appropriate technical provisions that this link will be retained with each data transmission, with the transfer of image data to other data carriers, with the display on a screen, as well as with each public display so that the photographer can be identified as the creator and MAGROUND as the picture agency at any time.
2. Before any image is published in print, at least two complete specimen copies must be sent to us automatically and free of charge in compliance with section 25 VerlagsG (German Publishing Act).
E. Penalty/Flat-rate Compensation
1. In the event of unauthorized use, defacement, modification, duplication, or passing on of theimage material or the GPS data, unauthorized transfer of reprinting rights to third parties, as well as production of copies of digital data records or analogue display of the image contents contained in the data records for archiving purposes of the orderer, as well as passing these on to third parties, the Customer shall indemnify MAGROUND from all resulting claims by third parties, and in case the Customer has omitted to delete data as stipulated by this contract, a minimum fee of five times the agreed usage fee shall become due, subject to further claims for damages being brought forward. This shall not affect a further claim for damages being brought forward. The same applies:
2. The payment of damages does not result in ownership rights or usage rights in the images or GPS data being obtained.
3. In the case of downloads or other means of working with the MAGROUND online image database, the Customer assumes full risk. In no case shall MAGROUND be liable for damages for any damage to software or hardware.
4. If MAGROUND does not own publication rights for the images or if the use that the Customer makes of the images is not permitted by these GTC, the Customer must indemnify and hold harmless MAGROUND as well as its senior executives and employees from all claims for damages, liability responsibilities, and costs arising from actual or threatened civil proceedings, lawsuits, or court proceedings regarding the use of the images by the Customer where the subject matter of said lawsuits is the absence of a publication right or the unauthorized use of the images by the Customer.
5. Obtained GPS data may not be passed on to third parties. In cases of unauthorized passing on, the Customer shall be liable to pay MAGROUND damages.
F. Terms of Payment, Place of Jurisdiction, Miscellaneous
1. MAGROUND bills become due and payable net without any deduction within 30 days from receipt. Should the Customer delay payment, MAGROUND is entitled to charge default interest in the amount of at least 5 percentage points above the current base rate pursuant to section 288 BGB (German Civil Code). Cancellation fees for cancellation within 14 days from billing are 60% of the invoice amount (minimum amount EUR 30.00), within 30 days from billing 100% of the billing amount.
2. Hamburg shall be the exclusive place of jurisdiction and performance for both parties, if said parties are registered merchants.
3. German law is deemed to have been agreed as applicable even for deliveries abroad.
4. Should a provision of these terms of delivery and business become invalid, this shall not affect the validity of the remaining provisions.
G. MAGROUND Online Image Database
1. MAGROUND allows the Customer free access to the MAGROUND online image database. The authorization to download image data is provided by means of a release effected by MAGROUND. There is no obligation on MAGROUND to effect an enduring release. The Customer must procure the required client software himself/herself.
2. The Customer may use the MAGROUND online database to search for photographs in the image data inventories stored therein and transfer these to their own computer as preview images or high-resolution data. The downloading of high-resolution data and layout data is only possible with a valid user number and password. These are to be treated confidentially by MAGROUND and the Customer. Should the access data be misused through the Customer's fault, the Customer shall be liable for the resulting damage.
3. The Customer has no entitlement to the MAGROUND online image database being constantly accessible. It is at MAGROUND's discretion to switch off the online image database temporarily or permanently and to modify, delete, or add to the contents stored therein.
H. MAGROUND Global Positioning System Database (GPS database)
1. Some images in the MAGROUND online image database come with global positioning system data (GPS data) indicating the location from which the picture was taken. In addition, the creation date is supplied with each image in the MAGROUND database.
2. The Customer has the possibility of obtaining only this GPS data for some of the images. However, these purchases only require MAGROUND to state the GPS data. The Customer purchases no usage rights whatsoever in the associated image in the MAGROUND online image database.
3. MAGROUND provides no guarantee whatsoever that the scene still exists unchanged at the point in time when the GPS data is purchased. Furthermore, MAGROUND does not accept any liability for any inaccuracies in the GPS data that might have resulted from a malfunction of the GPS recording device at the time the GPS data was recorded.
1. The declaration of consent ("Datenschutzrechtliche Einwilligung" demanded under German law) informs the customer about the type, scope, duration, and purpose of the acquisition and processing of personal data and the Customer's right to exclude the use of their personal data for marketing purposes by MAGROUND.
J. Final Provisions
1. The law of the Federal Republic of Germany applies. The UN convention on contracts for the international sale of goods (CISG) is excluded. German law shall also be deemed to have been agreed as applicable to deliveries abroad.
2. Hamburg is place of jurisdiction and performance.
3. Except for an explicit written declaration of relinquishment, no action by MAGROUND may be considered a relinquishment of any provision of these GTC. Any delay in exercising its rights and responsibilities shall not constitute a relinquishment of aforesaid rights and remedies on the part of MAGROUND. The one-time relinquishment of a right or remedy shall not constitute an impediment or relinquishment of said rights or remedies on a different occasion.
4. Should individual provisions of this contract be ineffective contrary to expectation, this shall not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by a provision with corresponding effect that comes closest to the economic purpose of the intended regulation.
5. This contract replaces all existing written or verbal agreements between the parties. Amendments require written form; this also applies to any amendment to this written form requirement.
6. In case of doubt the German version of the company's terms & conditions will apply, which we will make available to buyers upon request.