General terms and conditions of sales and delivery, Gruppe28 – The Photo Agency partnership, Germany,22765 Hamburg, Behringstrasse 28a (hereinafter Gruppe28)
As at 01/2008
A. Miscellaneous
1. The following general terms and conditions of sales and delivery apply to all deliveries, sales and offers of Gruppe28. When accepting analogue or digital photographic material or any other services these term and conditions apply accordingly. The purchase terms of the customer are not binding, even when Gruppe28 not expressly opposes them. Divergent terms are only valid when they are specifically agreed upon and are confirmed by Gruppe28 in writing. The alteration of any individual term does not affect any other.
2. Analogue and digital photographic material shall remain the property of Gruppe28 and its photographers respectively. All photo images are only made available on loan. Analogue photo material has to be returned within a period of 21 days, previews have to be deleted after a period of 28 days.
3. The approval for the publishing of ceded photographic material, showing people and/or proprietary works and items and/or buildings, is no integral part of this agreement and shall be requested and agreed upon with the right owners themselves.
B. Provision, handling, warranties and publication
1. Unless expressly specified on the delivery note and/or invoice statement, deliveries of photographic material do not constitute consent on the part of Gruppe28 to the publication, duplication and processing or use of the material as draft and/or layout template etc.
2. Any use on the part of the customer requires an expressly written release of Gruppe28 after clarification of purpose of use, edition, distribution and the thereby emerging fees (license). The approval must be in written form or has to be implicated on the part of Gruppe28 in the invoice.
3. Processing, reworking and replicating and any other modifications (e.g. photo-mountings) are subject to the consent of Gruppe28. Any duplication of material is forbidden unless a written release has been granted by Gruppe28.
4. Complaints concerning the content of a delivery shall not be accepted unless made immediately upon receipt; otherwise the delivery of the material shall be deemed to have been effected properly and as stipulated in the contract.
5. In principle, the analogue and digital photographic material is released only once for the agreed purpose and in one medium. Any further use is subject to an additional fee. Any transfer of digital material to third parties is merely permitted for the internal purposes of viewing and selecting. The filing of ceded photographic material is not permitted.
6. When printed any image manipulation has to be labelled as follows: photo [M] author/Gruppe28.
C. Fees/Charges
1. Any kind of use of Gruppe28 photographic material is subject to a fee or charge. The fees and charges depend on kind, amount, duration and circulation of use. Gruppe28 refers of the ‘Mittelstandsgemeinschaft Foto-Marketing’ (MFM).
2. In case of unauthorised use Gruppe28 is entitled to insist on an additional charge of 100 percent, further indemnity claims will remain unaffected. The signatory reserves the right to prove that Gruppe28 did not sustain damage to the aforementioned amount.
3. All invoices are due and payable upon receipt by the customer.
D. Costs and Fees
1. Orders of photographic material and their dispatch are subject to fees. All due service fees and postal rates are for the customers account and comply with the kind and amount of labour input.
2. Original slides shall be returned in its original state to Gruppe28 immediately after printing or the termination of the loan period. Compensation for loss or damage is 1,500 EURO for each original slide/negative. In case of copies reproduction and recovery costs will be invoiced, plus a handling fee.
In case of replacing the photographic material from its frame a layout charge of minimum 100 EURO will be invoiced. On paying compensation or layout charges no property or usage rights are acquired. The customer is responsible for the costs and risk of returning the material.
3. On exceeding the deadline for returning analogue photo material a charge of 2 EURO per slide/print and day of the actual exceeding will be invoiced.
4. The recording of high-resolution image data is liable to pay costs and shall be agreed upon with Gruppe28.
E. Copyright notice, specimen copy
1. The copyright regulations always apply above and beyond any agreements made. Publications shall always be labelled with the author and agency note. Thus the photographer’s name followed by the agency’s name “Gruppe28†shall be stated next to the photo. This does not apply for displays forming part of movies and television productions, concerning advertisement purposes exceptions may be granted. Furthermore the customer is obliged to send two specimen copies of each printed publication to Gruppe28 at his own initiative and costs.
2. In case of nonfeasance Gruppe28 shall impose a penalty fee amounting to 100 % of the basic fee.
3. Any duplication of the image material is forbidden unless a written release has been granted by Gruppe28.
4. The customer’s statement shall include the name of the publication, number of edition, number of page, name of photographer as well as image size. In case of nonfeasance Gruppe28 is entitled to charge general expenses amounting to 50 % of the basic fee.
F. Liability, Compensation
1. Any liability on the part of Gruppe28 regarding the existence of assigned personal rights is excluded. The same applies to any liability for the infringement of personal rights and rights in one’s own picture. The customers of Gruppe28 know that the permission from persons for the publication of photographic material containing their image and/or legally protected works and/or objects does not form part of this agreement. The customer is therefore required to obtain permission directly from the persons holding these rights before publication of the material in question
2. In case of unauthorised use or transfer of the photographic material without prior written release by Gruppe28, the customer shall be liable for any claims made against him by third parties, disregarded which kind of legal form they are. In such a case Gruppe28 shall be entitled to a compensation fee amounting to at least € 1,500.00 or, alternatively, 10 times the usage fee, whereby any right to further damages shall remain unaffected, unless the customer proves that Gruppe28 did not sustain damage to the aforementioned amount.
3. When reproducing images any changes of the ceded material are not permitted. This includes e.g. the alteration of existing labelling which might lead to humiliation or vilification of people or objects. The customer shall be fully liable for any claims by third parties arising from a violation of the above provision and shall release Gruppe28 from any liability in connection with such claims.
4. No ownership or user rights for the photographic material in question shall be transferred to the customer as a result of his compensation of aforementioned damages.
G Final Provision
1. Verbal collateral agreements shall be invalid. Any alteration or collateral agreement must be in written form.
2. Any dispute between Gruppe28 and the customer, domestic as well as abroad, shall be settled in accordance with German law.
3. The fact that one or more articles in these general terms and conditions are declared invalid shall not affect the applicability of the other parts of these terms and conditions. If a provision in these general terms and conditions is invalid, then that provision shall be replaced with a valid provision which as much as possible approximates the purpose of the invalid provision
4. The place of jurisdiction for all disputes arising out of this agreement of Gruppe28 shall be Hamburg, Germany.
