1. General Terms

1.1 All offers, deliveries, digital transmissions and the award of usufructuary rights are made in accordance with the terms and conditions below subject to confirmation only and non-exclusively. Diverging terms and conditions of the ordering party are only valid with written confirmation given by akg-images. Our terms of sale can be rejected in an effective manner only by immediate return of the delivered pictorial material within three working days after receipt by the ordering party. If digitally offered pictorial material is used, then withdrawal from the business relation with akg-images with an acknowledgement of the general terms and conditions is only possible by transmittal of an email with a return confirmation to office@akg.de including the legally binding undertaking that the transmitted/downloaded data have remained uncopied, have not been sent on and have been deleted without any utilization and that no printouts have been made thereof. In the event of a usage of akg-images’ internet range, the above shall be deemed equally accepted either by clicking the “I accept”-button of the general terms and conditions accessible there or generally by registration as a registered user.

1.2 Complaints shall be made in writing within one week after receipt by the ordering party of the pictorial material; complaints regarding technical or other hidden defects shall be made within ten working days after the discovery thereof. If no complaint is made, then any liability on our part for costs which may already have arisen or may arise shall be excluded.

1.3 akg-images offers primarily wide-ranging services regarding comprehensive documentation, selection of pictorial material and provision of digitalized pictorial data. Additionally, usufructuary rights which akg-images could acquire from a photographer or visual artist are conceded on request to the ordering party as part of the utilization as stated by the latter. The pictorial material provided, including that in a digitalized format, shall always remain the property of akg-images and/or the authors. It is provided only temporarily and for the acquisition of usufructuary rights within the meaning of the copyright (see Clause 3.) as well as under ancillary copyright.

1.4 Pictorial material in which the ordering party does not wish to acquire and/or has not acquired any usufructuary rights shall be returned within the period stated on the delivery note and/or shall be deleted from the digital storage. Pictorial material in which the ordering party has acquired usufructuary rights or in which he has shown his interest of usage shall be returned after the work preparation at the latest and/or shall be deleted; should for the above a period of 90 days be exceeded, then the expressive consent for the extension of the lending and/or storage period must be obtained from akg-images prior to expiry.

2. Fees Each order and usage of our pictorial material – whether solely for internal (selection) purposes or for publications – is subject to fees, namely in the manner set out below:

2.1 Documentation Fee

For all deliveries and transmissions of pictures and the costs associated therewith of research, picture procurement and temporary lending of the pictorial material, we charge a documentation fee which is determined by the type and scope of the expenditure caused. The ordering party acquires neither usufructuary nor proprietary rights with payment of this documentation fee. Dispatch and/or transmission costs may be charged separately.

2.2 Layout Fee

Our ectachromes are sealed. Should the seal be opened without disclosure of a specific usage, then a layout fee will be charged. If high-resolution pictorial data without any visible watermarking are made available digitally, then a layout fee may equally be charged.

2.3 Picture Fee/Fee for the Granting of Rights in the Photographic Usufructuary Right

2.3.1 The granting of usufructuary rights in the photographic copyright will always be charged as an extra. Additional costs for a potentially necessary obtainment of supplementary usufructuary rights of other authors are not included therein.

2.3.2 The picture fee shall also be due in the case of a utilization of a picture as a sample for drawings, caricatures and regenerated photos, in the case of a utilization for layout purposes and customer presentations as well as in the case of a utilization of pictorial details which become part of a new picture through montages, photo-composing, electronic picture carriers or similar techniques.

2.3.3 The picture fee shall be agreed upon in advance. It is dependent on the medium, type, scope and duration of the usage. Should no fee inquiry be made by the ordering party or no other fee agreement be made, then fees will automatically arise according to akg-images’ applicable fee rates. If the ordering party fails to give specific details, then akg-images is entitled to charge a flat fee for a specific time-related, content-related and location-related usage or to reject the utilization.

2.3.4 The fees shall only apply for a single usage for the specified purpose, scope, period and area of application. Each additional usage is again subject to fees and always requires our prior written consent.

2.3.5 If an illustrated object (e.g. a book, CD cover, brochure etc.) is pictured in a new medium, then a fee shall again become due for the pictorial motif recognizable thereon, regardless of any usufructuary rights paid for the same picture in the original utilization context. This shall apply in particular to the usage for advertising purposes. The user shall inform the picture library about the new purpose of use and shall obtain prior written consent for the usage.

2.4 All fee quotations in offers, price lists and other literature are always in net terms excluding VAT and artists’ social benefits contributions.

2.5 Advice notes and fee payments must always be made quoting the customer number, picture number and the author’s name and, in the case of several objects, stating which picture has been used in which publication and in which place. If such details are not given, then an additional expense reimbursement may be charged for the processing.

3. Copyrights and Exploitation Rights

3.1 It is only a single and non-exclusive usufructuary right in the copyright of the photographer, who produced the pictorial material, which, as a matter of principle, is granted according to time-related, location-related and content-related criteria mentioned on the delivery note or the invoice in so far as such right exists. The award of rights only takes place as long as no other provisions have been made (e.g. in cases when only a repro-sample is provided) and under the suspensive condition of complete payment of the fee.

3.2 The ordering party must specify fully the type, scope, duration and area of application of the intended usage when ordering or in any event prior to the technical utilization of the pictures at the latest. The consent for usage given by akg-images is always exclusively related to the details made by the ordering party and effective only if it is given in writing. Should the actual usage not correspond with the details given by the ordering party, then the consent for usage is not deemed to have been given.

3.3 Usage may take place only in the original version of the granted pictorial material. Any adaptations always require the prior written consent. Digital reworking/processing shall be excluded therefrom as long as the pictorial content is not changed. In the case of colour-controlled and quality-controlled pictorial files, any reworking, particularly in the case of authors protected by artistic copyright, takes place on one’s own responsibility.

3.4 It is not permitted to pass on pictorial material or reproduction rights to third parties, including other editorial departments of a publishing house or associated companies. Slide duplications, production of inter-negatives, reproductions, enlargements, digital printouts and electronic storage or editing of pictorial data for archiving and other purposes of the ordering party as well as the passing-on thereof to third parties beyond the work preparation are equally not permitted.

3.5 Electronic editing for the contractually envisaged retrieval of the pictorial material is only permitted for the ordering party’s own purposes. The pictorial material may only be stored for the duration of the work preparation and must be deleted thereafter.

3.6 We expressly reserve the granting of other rights in performing-rights societies and do not recognize clauses pursuant to which the protection of further rights shall be excluded by receipt of a fee.

3.7 In the case of pictorial samples the pictorial content of which affects further copyrights (e.g. in the case of photographed works of the visual and performing arts or of film works which are still subject to the period of protection under the Copyright Act), the relevant usufructuary rights and other consents for publications (held e.g. by collections, museums etc.) must be obtained by the ordering party and/or user themselves.

4. Agency Note and Copyright Note/Voucher Copy

4.1 With reference to § 13 Copyright Act, we demand expressly an agency note and copyright note in a manner removing every doubt about attribution to the relevant picture. Collective picture credits only suffice to the extent that they would also allow attribution to the relevant picture beyond any doubt. This shall also apply to advertising, insertions in television programmes and films, utilization on websites and other usage in digital media unless some expressive special arrangement is made.

4.2 In the case of electronic editing of the pictorial material, the agency note and copyright note are to be linked with the pictorial data in such a manner that the details are retained even after transmission and public reproduction.

4.3 At least two unsolicited and cost-free complete voucher copies of each printed publication are to be sent to akg-images in accordance with § 25 Publishing Act. Any further usage must be reported in writing.

5. akg-images’ Liability

The release declaration given by the agency for the usage of the pictorial material shall not include the undertaking that the pictured persons or possible further holders of a right have given consent for the publication. akg-images shall not be liable for damage which the ordering party/user suffers as a result of third holders of a right asserting claims.

6. The Ordering Party’s Liability

6.1 The ordering party/user is obliged to comply with the communication-media regulations of the German Press Council (Press Code). Furthermore, he shall bear responsibility for the captioning, for pictorial and verbal forgeries, distortions of the work protected by copyright, particularly through copy-drawing, re-photographing, photo-composing or electronic means, as well as for utilizations which may result in the degrading of pictured persons. This shall also apply in the case of a breach of general personal rights or of copyrights by a pictorial and textual usage which is contrary to the arrangements or distorts the meaning. The ordering party shall release akg-images from possible claims made by third parties.

6.2 The ordering party shall be liable towards akg-images for any unauthorised or infringing usage of the pictorial material, particularly due to unpermitted passing-on, exceeding of the purpose of use or scope of use agreed upon, missing agency note/copyright note or in the case of distortion.

6.3 In the event of a breach of third parties’ protected rights in the pictorial content (see Clause 3.7), the ordering party shall release akg-images from any claims.

6.4 The dispatch risk of the return mailing shall be borne by the sender. The ordering party shall be responsible for the costs and risk of a complete and proper return mailing and shall be liable for improper and insufficient packaging. Such responsibilities bind the ordering party to indemnify in the event of loss or damage even if the return mailing to the picture library is effected through third parties authorized by the ordering party. Missing picture templates and captions shall equally be deemed to constitute an incomplete return mailing. Potential administrative costs on our part shall be at the ordering party’s expense.

6.5 The ordering party shall be responsible for the deletion of the digital pictorial data following usage/work preparation and in the case of non-utilization.

7. Contractual Penalty/Flat-Rate Damages

7.1 In the event that our pictorial material, whether in an analogue or digital format, is used without authorization, distorted or passed on, that reproduction rights are passed on to third parties without authorization, that slide duplicates, inter-negatives, reproductions and enlargements are generated for archiving purposes of the ordering party without authorization (including in a digitalized format) and that the same are passed on to third parties, we will demand damages of an industry-customary sum notwithstanding the normal usage fee.

7.2 If no copyright note and/or agency note are forthcoming, then we shall be entitled to charge a supplement of 100% in addition to the usage fee plus a flat amount for administrative costs.

7.3 If the note on the usage is not forthcoming, akg-images will charge a fee for media control as well as for the unregistered picture usage a contractual penalty of 200% of the fees to be calculated according to our price list.

7.4 In addition to the usage fee, blockage costs can be charged if analogue pictorial material in which the ordering party has acquired usufructuary rights and/or in which he has shown an interest of usage is not returned after 90 days from receipt thereof. The blockage costs following exceeding of the time limit shall be per item and started month € 15,00 for colour slides and € 8,00 for black-and-white photos.

7.5 Damages shall be paid for damaged or unreturned pictorial samples. For pictorial samples which are rendered unusable due to damage and/or are lost, the damage shall be compensated for up to the total costs for the actual replacement up to a maximum amount of € 500,00. For restorable duplicate slides, the costs are € 150,00, for black-and-white photos € 25,00. Archive prints and manual prints of authors’ photographies are deemed not to be authorized. In the event of a passing-on to the arts market, we will charge damages as well as a payout of the proceeds in relation to the care of the works and the collector market.

7.6 The relevant costs are deemed to be agreed upon without akg-images having to furnish detailed evidence of the extent of the damage. It shall be up to the ordering party to furnish evidence of a potentially lower damage in each and every case. akg-images equally reserve the right to claim and charge further damages and blockage costs respectively.

8. Payment Terms, Venue, Miscellaneous

8.1 Our invoices are always payable net within 14 days.

8.2 The venue and place of performance shall be Berlin provided the ordering party constitutes a trader, a legal entity of the public law or a special fund of the public law.

8.3 German law shall apply, even in the case of international deliveries.

8.4 Should individual provisions of these terms and conditions be void, then the validity of the remaining provisions shall remain unaffected. Instead, their place should be taken by a provision which will be closest to the commercial purpose as intended initially by the parties.
Berlin on this first day of March 2003