General Terms and Conditions for the supply of picture material and the granting of rights of use of Pro-Ma Sport & Media GmbH

Validity
1. the following general terms and conditions (hereinafter referred to as GTC) apply to all orders, offers, deliveries and services carried out by Pro-Ma Sport & Media GmbH (hereinafter referred to as pepphoto).

2. they are considered agreed upon with the acceptance of the delivery or service or acceptance of the offer from pepphoto by the customer, but no later than with the acceptance of the image material for publication.

3. if the customer wants to object to the terms and conditions, this must be declared in writing within three working days. Deviating terms and conditions of the customer are hereby contradicted. Deviating terms and conditions of the customer do not become valid without written acceptance by pepphoto.

4. the terms and conditions apply in the context of an ongoing business relationship even without express inclusion for all future orders, offers, deliveries and services of pepphoto, unless otherwise expressly agreed.

Commissioned productions
1. in the case of commissioned productions, the customer is generally granted a simple right of use for one-time use.

2. a special agreement is required for exclusive rights of use as well as for media-related or spatial exclusive rights or blocking periods, which require a surcharge of at least 100% on the respective basic fee. Unless otherwise agreed, the blocking period shall be 90 days from the start of production, after which this photographic material may also be offered for use to other customers.

3. The delivery of the photographic material shall exclusively transfer a simple right of use for one-time use for the purpose specified by the customer and in the publication and in the medium or on the data carrier specified by the customer or resulting from his specified order. If this is not clearly stated in the order, the object (newspaper publisher, television broadcaster, etc.) to which the photographic material has been supplied in the customer's order shall be the authoritative recipient of the right of use.

4. any further use, publication, distribution, reproduction or exploitation of the image material beyond the scope of section 3 is subject to a fee and requires the consent of pepphoto; this applies in particular to

• anthologies, advertising measures, product-accompanying brochures, reprints as well as secondary  use and publication,
• Modification or redesign of the image material and its processing,
• Digitalisation, storage or duplication of the photographic material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard disks, main memory, microfilm etc.), insofar as this does not only serve the technical processing and administration of the photographic material in accordance with No. III 5 GTC,
• any duplication or use of the image data on digital data carriers, any recording or reproduction of the image data on the Internet or in online databases or in other electronic archives (also insofar as these are internal electronic archives of the customer)
• the passing on of the digitalised picture material by means of remote data transmission or on data carriers which are suitable for public reproduction on screens or for the production of hard copies
• Changes to the photographic material by photo-composing, mounting or electronic means to create a new copyrighted work are only permitted with the prior written consent of pepphoto and only if marked with [M]. Furthermore, the image material may not be copied, re-photographed or otherwise used as a motif.

5. the customer may not transfer the rights of use granted exclusively to him/her to third parties, in whole or in part, including other group or subsidiary companies.

6. any use and publication of the provided picture material is only permitted under inclusion of the copyright notice specified by pepphoto in doubtless allocation to the respective picture.

Use of the image database
1. the use of the database accessible via the internet is only possible after activation by pepphoto.

2. the activation of the access takes place after the conclusion of a prior written agreement, which is made with the customer registration, in which pepphoto accepts the customer application - subject to a rejection in individual cases - according to the transmitted customer data (user name and customer password).

3. the access data of the customer are subject to strict secrecy and are not to be passed on to unauthorized third parties. If the customer is responsible for the misuse of his customer data by third parties, he is obliged to compensate the damage caused by this. If the customer suspects that an unauthorized third party has obtained knowledge of the access data, he/she must inform pepphoto immediately.

4. pepphoto does not have a customer claim to constant availability of the image database. pepphoto has the right at any time to perform maintenance work on the image database and to make technical changes that may lead to a temporary unavailability of the image database. pepphoto will try to keep these downtimes to a minimum.

5. In case of a breach of contract by the customer, pepphoto reserves the right to block the customer's access to the image database, subject to further claims.

6. the accompanying image information in the image metadata of the image database of pepphoto and the restrictions of use and application contained therein must be strictly adhered to by the customer. If damages arise from the non-observance of the customer, the customer alone is liable and indemnifies pepphoto from any claims of third parties. In this case, pepphoto also reserves the right to claim further damages.

Use of the image material
1. pepphoto owns the rights of authors, ancillary copyright holders and other entitled parties, which require the contractual use of the image material. Excluded from this are the personal rights of depicted persons, the rights exercised by collecting societies, as well as copyrights to depicted objects such as paintings, works of art and the rights of protected marks such as brands. pepphoto must be informed in advance by the customer in what way and for what purpose, in what period of time and to what extent in which medium he wants to use the image material. If the information provided by the customer does not correspond at all or only partially to the actual use, the customer is obligated to pay pepphoto for any deviating use and insofar indemnify pepphoto from third party claims. Due to a non-observance, pepphoto reserves the right to claim further damages.

2. with the acquisition of the right of use of the selected image material, the customer is entitled to a simple, non-exclusive right of use of the photographic copyright for one-time, non-transferable use within the framework of the agreed manner, the agreed purpose / period / scope / medium.

3. pepphoto's consent must be obtained in advance for any possibility of use that goes beyond the agreed upon, such as presentations, layouts, advertising brochures, work templates, etc. This also applies to further use, such as for advertising material concerning the medium, repetitions or other extensions of the originally acquired right of use.

4. exclusive rights and blocking periods must be agreed separately with pepphoto in advance. If no blocking period is negotiated, it is limited to four weeks. After this period, pepphoto may offer the blocked image material to other interested parties for use. Special conditions and / or photo material affected by fee agreements must be approved in writing by pepphoto before use. If the customer uses the image material without written release, he/she shall indemnify pepphoto from all claims of third parties.

5. the transformation of the image material and / or its processing beyond the normal extent, such as through photo composing or photomontage, regardless of the technical means used, as well as its transfer and further transfer to third parties, regardless of the method of transfer, the transfer and granting of rights of use to third parties, the granting of reprint rights, duplication, digitizing and archiving is strictly prohibited without the prior written consent of pepphoto. In this sense, subsidiaries and other editorial offices of the same company are also considered third parties. If the customer violates this provision, he is obligated to pay the respective fee loss. The assertion of further claims for damages are reserved by pepphoto despite the subsequent payment.

6. Any granting of rights regarding the use of the image is subject to the condition precedent of the agreed upon payment of the fee.

Provided picture material (analog and digital)
1. the general terms and conditions shall apply to all photographic material provided to the customer, irrespective of the stage of production or technical form of the material. They also apply in particular to electronic or digitally transmitted photographic material.

2. The customer acknowledges that the photographic material supplied by pepphoto is copyrighted photographic work within the meaning of § 2 para.1 number 5 Copyright Act.

3. design proposals or concepts commissioned by the customer are independent services that must be remunerated.

4. pepphoto retains ownership of the photographic material provided, even in the event that compensation is paid for it.

5. The customer must treat the photo material carefully and with care and may only pass it on to third parties for internal business purposes of viewing, selection and technical processing.

6. complaints concerning the content of the delivered consignment or the content, quality or condition of the photographic material shall be notified within two weeks of receipt. Otherwise, the photographic material shall be deemed to have been received in a proper manner, in accordance with the contract and as recorded.

Determination of the rights of use
1. the customer acquires in principle only a simple right of use for single use. Unless otherwise agreed, publications on the Internet or the placement in digital databases are limited to the duration of the publication periods of the corresponding or a comparable print object.

2. Exclusive rights of use, media-related or spatial exclusive rights or blocking periods must be agreed separately and require a surcharge of at least 100% on the respective basic fee.

3. upon delivery, only the right of use shall be transferred for the one-time use of the photographic material for the purpose specified by the customer and in the publication and in the medium or data carrier which the customer has specified or which results from the circumstances of the order. In case of doubt, the purpose of use for which the photographic material has been made available as evidenced by the delivery note or the shipping address shall be decisive.

4. any use, exploitation, reproduction, distribution or publication beyond the scope of section 3 is subject to a fee and requires the prior explicit consent of pepphoto. This applies in particular to:

• a secondary use or secondary publication, especially in anthologies, product-accompanying brochures, in advertising measures or other reprints, any editing, modification or redesign of the image material,
• the digitalisation, storage or duplication of the photographic material on data carriers of any kind (e.g. magnetic, optical, magneto-optical or electronic carrier media such as CD-ROM, DVD, hard disks, main memory, microfilm etc.), insofar as this does not only serve the technical processing and administration of the photographic material in accordance with No. III 5 GTC
• any duplication or use of the image data on digital data carriers, any recording or reproduction of the image data on the Internet or in online databases or in other electronic archives (also insofar as these are internal electronic archives of the customer)
• the passing on of the digitalised picture material by means of remote data transmission or on data carriers which are suitable for public reproduction on screens or for the production of hard copies

5. alterations of the graphical material by photo-composing, mounting or by electronic means to create a new copyrighted work are only permitted with the prior written consent of pepphoto and only if marked with [M]. Furthermore, the image material may not be copied, re-photographed or otherwise used as a motif.

The customer is not entitled to transfer the rights of use granted to him in whole or in part to third parties, including other group or subsidiary companies. Any use, reproduction or transfer of the picture material is only permitted under the condition that the copyright notice specified by pepphoto is attached in a doubtless assignment to the respective picture.

The granting of the rights of use is subject to the condition precedent of full payment of all payment claims of pepphoto from the respective contractual relationship.

Liability
1. pepphoto assumes no liability for the violation of rights of depicted persons or objects, unless an appropriately signed release form is attached. The acquisition of rights of use beyond the photographic copyright, e.g. for depicted works of fine or applied art, as well as obtaining publication permissions from collections, museums, etc. is the responsibility of the customer. The customer is responsible for the text as well as the context of meaning resulting from the specific publication.

2. from the time of proper delivery of the photographic material, the customer shall be responsible for its proper use.

3. in the case of unauthorized use, editing, redesign, duplication, modification, transfer of image material, failure to observe the copyright notice or electronic storage, the customer must indemnify pepphoto from all resulting claims of third parties. In addition, pepphoto is entitled to demand a contractual penalty in the amount of double the fee rate or 220 euros per picture, regardless of the assertion of further claims for damages.

4. pepphoto does not acquire ownership or usage rights to the image material from the customer upon payment of damages and/or a contractual penalty.

5. in the case of customer warranty rights against pepphoto, these are initially limited to the claim of rectification, if this is not possible or unsuccessful, the customer can withdraw from the contract.

Fees
1. the agreed fee applies. If no fee has been agreed, it shall be determined according to the current picture fee overview of the Mittelstandsgemeinschaft Fotomarketing (MFM). The fee is understood to be exclusive of the respectively valid value added tax. If the customer does not provide any usage information, pepphoto is entitled to set a flat fee.

The agreed fee covers the one-time use of the image material for the agreed purpose according to IV. 3.

3. costs and expenses incurred by the order (e.g. material and laboratory costs, model fees, costs for necessary props, travel costs, necessary expenses, etc.) are not included in the fee and shall be borne by the customer.

4. the fee claim is due upon delivery of the recording. If a production is delivered in parts, the corresponding partial fee is due with the respective delivery. pepphoto is entitled to demand advance payments for production orders according to the respective scope of services rendered.

5. a set-off or the exercise of the right of retention is only permissible with undisputed or legally binding claims of the customer. In addition, offsetting against disputed counterclaims that are ready for decision is permitted.

6. pepphoto will invoice license fees and usage fees or, if previously agreed upon, by billing the customer by means of voucher copy and instruction. (by paint)

7. if coloured picture material is used in black and white, the fees and charges incurred shall not be reduced.

8. if the customer acquires an exclusive right to use the image from pepphoto for a period of time, he/she must transfer the agreed fee without exception, even if no publication has taken place by the end of the blocking period.

Return policy of the image material
1. analogue picture material shall be returned in the form in which it was supplied without being asked immediately after publication or the agreed use, but no later than 3 months after the delivery date; two specimen copies shall be enclosed. An extension of the 3-month period requires the written consent of pepphoto.

2. digital data must always be deleted after the end of use or the data carriers must be destroyed. pepphoto is not liable for the stock and/or the possibility of a renewed delivery of the data.

3. if pepphoto, at the request of the customer or with the customer's consent, provides photographic material solely for the purpose of checking whether use or publication is possible, the customer must return analog photographic material within one month of receipt at the latest, unless another deadline is noted on the delivery note. Digital data shall be deleted or the data carriers destroyed or returned. An extension of this deadline is only effective if it has been confirmed in writing by pepphoto.

4. the customer shall return the photographic material at its own expense in packaging customary in the industry. The customer bears the risk of loss or damage during transport until receipt by pepphoto.

Specimen copy, copyright notice of the agency and picture copyright
1. with the publication of any photo material provided by pepphoto, the customer is obligated to place the agency and copyright notice (pepphoto / photographer) clearly visible and legible near the picture in such a way that the assignment can be recognized without doubt. This also applies analogously to collective picture credits, where the assignment must be just as clearly visible. Also, pepphoto can require the customer to publish images without the agency / copyright notice.

2. within 14 days of publication, the customer has to send pepphoto free of charge and unsolicited 2 complete specimen copies of the print publication or a printout of the relevant Internet page, giving the pepphoto image number.

Contractual penalty, damages
1. for any unauthorized (without the consent of pepphoto) use, utilization, reproduction or transfer of the image material, a contractual penalty amounting to five times the usage fee is payable for each individual case, subject to further claims for damages.

2. in the event of omitted, incomplete, incorrectly placed or unassignable copyright notice, the customer shall pay a surcharge of 100% of the agreed or customary usage fee and also obligates the customer to keep pepphoto free of any claims by third parties in this regard.

3. if the customer bills pepphoto without a specimen copy and / or makes inaccurate, false or no information about which picture has been used where and when, a contractual penalty of 50% of the usage fee is payable.

4. if the customer pays damages and/or a contractual penalty, he/she shall not acquire any ownership and/or usage rights to the photographic material.

General information
1. the law of the Federal Republic of Germany shall apply as agreed, even for deliveries abroad.

2. collateral agreements to the contract or to these terms and conditions must be in writing to be effective.

3. the possible invalidity or ineffectiveness of one or more provisions of these terms and conditions shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a valid provision that corresponds to the meaning of the invalid provision and that comes as close as possible to the intended provision in economic and legal terms.

4. place of performance and jurisdiction is Mülheim an der Ruhr, if the customer is a registered trader.