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General Terms and Conditions

Legal Notes

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1 Purview
1.1 These terms and conditions apply to all services provided by the StefanMay.com Archive (hereafter referred to as 'May'), namely the yielding of certain user rights to the pictures. The business conditions of the customers themselves are not valid, even if referred to by the customer when placing an order.
1.2 These terms and conditions of business apply to this and all future business conditions between May and the same customer, without further, express inclusion thereof.
2 Orders and Contracts
2.1 The offers made by May always remain subject to alteration. Contracts pertaining to the services to be provided by May come into effect only upon written confirmation of the order and licence, respectively. This also applies if the parties have hitherto exchanged information or data electronically.
2.2 A contract does not materialise in the event that May provides the customer with visual material for the purposes of selection ("articles sent on approval"). In particular, user rights are not transferred with the temporary supply of articles sent on approval
2.3 The party to the contract and customer as defined by these terms and conditions of business is always the person contracting May with the provision of services, i.e. licensing of visual material. Should the customer, an agency for instance, not use the visual material for his own medium, but for the medium of a third party, e.g. a client, then the customer, regardless of such use, is still party to a contract with May and is liable for fulfilling all obligations arising from the agreement with May. This likewise applies if the customer requests that invoices be sent directly to a third party, e.g. a client of the customer.
3 Services
3.1 May provides the customer with the agreed visual material in a suitable form, for example as photographic prints, transparencies, negatives, drawings, computer graphics, or in the form of digital data carriers such as video tape, CD-ROM or laser disc, or transfers the photographic material in digitalised or otherwise computer-readable form ("digitalised picture material") by means of data transmission (ISDN, Internet, e-mail), and grants him the rights to use the pictures on a specifically defined scale.
3.2 The exact volume and scope of the services provided by May are described in the written confirmation of the order and licence.
4 Use of the Visual Material by the Customer
4.1 The use or application of visual material implies any form of reprinting, reproduction, projection, copying, layout or duplication on another form of hard copy, i.e. on paper or another physical medium, also for instance as a component or draft of another picture. Visual material can also be digitalised visual material, to which figure ... of these terms and conditions also applies.
4.2 May grants the customer non-transferrable user rights only for one-off use for the purposes as stipulated by the licensing agreement.
4.3 None of the user rights granted the customer by May in line with the licensing agreement are exclusive. Exclusive rights to the use of visual material are granted only if these have been agreed specifically in writing.
4.4 The visual material remains the property of May; it is made available to the customer on loan only. The duplication, reproduction, photocopying, storage or transmission of the visual material to third parties for purposes other than for internal inspection is not permitted. Duplicates made for internal purposes must be returned to May. Figure 4.6 remains unaffected hereby.
4.5 Editing or otherwise changing the visual material, whether by means of photocomposing, montage or electronically, or otherwise, is not permitted. This applies to digital visual material in particular. The visual material also may not be initialled, or adjusted and photographed, respectively. Exceptions to this provision require written approval. In the event of infringement of this clause, the settlement agreed in the order confirmation shall be increased - despite enforcement of further damages by May - by 500%.
4.6 The originator of the picture and the name, Stefan May/StefanMay.com Archive, are to be endorsed with every use. The endorsement must be clearly assignable to the picture used. Should the picture not be endorsed, the settlement agreed for its use shall be increased - despite enforcement of further damages by May - by 100%.
4.7 Should the customer use visual material without May having granted the relevant user rights in the licensing agreement, May shall have the right to compensation - despite enforcement of further damages by May - to the sum of 500% of the usual remuneration for such use.
4.8 Portraits of persons in public life, for example of well-known actors or photo models, may not be used in such a way as to suggest a relationship with a certain product or contain textual or tendentious alienations. The customer is responsible for obtaining the necessary approvals.
5 Duties and Obligations on the Part of the Customer
5.1 The customer is obliged to return the visual material to May by the deadline stipulated in the confirmation of the order or licence. A prolongation of the return deadline applies only if such has been confirmed in writing by May. The customer is obliged to enclose a delivery note with the returned visual material, from which the number and type of returned pictures can be gleaned.
5.2 The customer is wholly responsible for ensuring that the visual material is used only in the legitimate way and that it is used in accordance with all the specific legal, i.e. copyright, provisions. He also vouches for his colleagues' compliance with these limitations of use.
5.3 The customer is obliged to provide May free of charge with two full specimen copies in which the visual material provided by May appears. The same applies to products on which the visual material provided by May is depicted.
5.4 The customer is obliged to observe the publicised principles of the press code issued by the German Press Council. The customer bears responsibility for any use of the visual material which exceeds the framework of the user licence or which contains tendentious alienation or textual insinuations. In such a case the customer alone is liable for damages when claimed by a third party.
5.5 The customer exempts May from claims made by third parties which are based on a legal violation on the part of the customer when using the visual material, particularly on an infringement of the provisions in figures 4.5, 4.6 and 4.7.
5.6 The customer agrees to the details he reveals to May within the framework of their contractual relationship being saved and automatically processed in its computer system. All employees are instructed and obliged to observe § 5 of the German data protection act.
5.7 The customer shall agree to May, or a representative of May, conducting an audit of his picture database in the event of justified reservations regarding compliance with these general terms and conditions of business of May. The costs incurred thereby shall be borne by the customer.
6 Digitalised Visual Material
6.1 In the event of the provision of digitalised visual material, the confirmation of the order and licence, respectively, can allow for the use of pictures on a "website " in a certain network - e.g. LAN, Internet, online services such as T-Online, AOL, CompuServe, etc ("website"). In such a case the customer may make the digitalised visual material accessible within the framework of the website in publicly reproduced form, including viewing and downloading, provided no hard copies are made from the digitalised visual material or the downloads. To this aim the customer is also permitted within the framework of the agreed website to copy the digitalised visual material into his main memory as well as to make a back-up copy thereof, as far as his website requires.
6.2 Unless otherwise stated in the confirmation of the order or licence, the digitalised visual material may be reproduced only once in a website. Each further or additional reproduction requires a further licence and is permitted only against payment of additional licence fees.
6.3 In the case of digitalised visual material reproduced on the agreed website, the customer must ensure that the digitalised visual material is not accessible as an individual file. He must ensure moreover that the digitalised visual material, when not laid out as specified in these terms and conditions, cannot be duplicated, removed either wholly or in part, altered, restructured or manipulated.
6.4 The person ordering the digitalised visual material is not permitted to save or integrate the visual material in a database or another storage form or information retrieval system, unless this is necessary for the purposes of reproducing the visual material for use on the agreed website. Furthermore, any such storage or integration is only permissible when he himself or his service provider does so.
7 Warranty and Liability
7.1 The customer is obliged to check the visual material provided by May within ten calendar days from receipt. If a complaint is not registered within this period May's service is regarded - even without the express declaration of the customer - as fulfilled. May shall bring this to the attention of the customer upon delivery/transferral of the visual material.
7.2 Over a period of six months from acceptance of the services, May shall amend any defects - if serious - free of charge by means of a replacement delivery. The warranty begins upon acceptance of the visual material and the expiry of the deadline given under figure 7.1, respectively. Should the defects not be successfully rectified, the customer can set May a suitable deadline for repairing the defects and declare that he shall refuse such rectification upon expiry of the deadline. Should the extension period expire to no avail, the customer can reduce the remuneration accordingly or terminate the contract.
7.3 Compensation claims against May are excluded, irrespective of the legal basis, unless May has acted with intention or criminal negligence or the compensation claims result from a breach of the warranted quality. May shall also be liable if one of his legal representatives or managerial staff has negligently breached an obligation which is vital to the achievement of the contractual purpose.
7.4 Should May be held liable as defined by figure 7.3, the claim for compensation is limited to the damages typically foreseeable at the time of closing the contract. The liability of May is thereby restricted in total per calendar year to the sum of the remuneration to have been paid by the customer for the visual material. Compensation for direct damages and consequential losses, such as lost profits, is excluded unless such damages have been caused intentionally or through the negligence of May, or through the carelessness of May's legal representatives or managerial staff.
7.5 All claims for compensation against May lapse six months following delivery. This does not apply to claims resulting from impermissible actions or to claims made by the customer due to malice on the part of May.
7.6 Only the customer can decide whether approval is required for the intended use of visual material on which persons are portrayed or which in another way affects the field of model release (rights to a personal picture, particularly in the case of persons or the interior rooms of buildings). May cannot guarantee therefore that the relevant permission is available, unless May has provided written assurance thereof.
7.7 May can accept no responsibility for the use of visual material on which trademarks, tradenames or protected components, designs or graphics appear. The customer is responsible for obtaining the necessary approval.
7.8 If claims are made against the customer due to protective rights being violated by the use of the visual material in the agreed area, May alone shall stipulate the type and extent of legal defence to be employed. The customer must inform May immediately in writing thereof. In the event that the use of the visual material as stipulated in the contract is affected by the protective rights of third parties, May has the right - to a reasonable extent as regards the customer - to either amend the contractual services as it chooses, thereby excluding them from the area of protection but nevertheless complying with the contractual agreements, or to obtain the authority for their use as stipulated by the contract in an unlimited fashion and without additional costs for the customer. If May is not successful in dispelling the interference of the rights of a third party in such a way, the customer is entitled to cancel the contract or to demand a reduction in the sum of remuneration. Compensation shall only be honoured within the framework of figures 7.3 to 7.5 above.
8 Remuneration, Invoicing, Price Amendment
8.1 The use of visual material is subject to a fee. The extent of remuneration is determined according to the scope and form in which the material is actually used and is stipulated in the licensing agreement prior to use. The customer is obliged to provide complete and correct information for the purposes of calculating the remuneration sum. The agreed fees apply only to the specifically defined purpose and extent clearly established by the licensing agreement. Any use in excess thereof requires a new licensing agreement.
8.2 May shall charge handling fees at the commercial rate for articles sent on approval, oriented to the type and extent of the expenditure incurred for picture researching and processing. Postage will be charged separately. Handling fees cannot be set off against fees for usage. In addition to the licensing remuneration, a layout fee shall be charged for the transmission of high-resolution visual material, the extent of which can be gleaned from May's valid scale of charges.
8.3 If the visual material is not returned by the deadline stated in the confirmation of the order or licence, May can demand an obstruction payment from the customer, the extent of which can be gleaned from May's valid scale of charges.
8.4 Prices are given net; value-added tax shall be paid by the customer additionally.
8.5 The remuneration must be paid regardless of whether the customer actually uses the visual material.
8.6 May is entitled to amend the agreed remuneration to match any unforeseen changes in costs if adherence to the agreed remuneration is unreasonable. In such a case the customer has the right to extraordinary termination of the contract at the time of the amendment.
9 Maturity, Arrears
9.1 May invoices are due for payment within three weeks from issue of the invoice, without delay, unless an alternative due date or another form of payment has been agreed.
9.2 Interest on arrears is subject to an interest rate of 4% above the applicable discount rate of the German Bundesbank, unless May provides proof of a greater, or the customer a lower loss of interest.
9.3 Should the customer be in arrears with a payment by more than two months, May can withdraw any further services, issue an invoice for all hitherto provided services and declare them as due for payment. If the customer still does not pay within an appropriate period from the respective reminder, then May - notwithstanding further claimes in light of the arrears - is entitled to terminate the contract in full or in part if May has threatened the customer with termination upon issue of the reminder.
10 Customer Liability
10.1 The customer shall pay compensation for the loss, partial damage or other damage to the visual material which prevents its further use in line with May's scale of charges valid at the time of the damages, without need for detailed proof of the economic damages. It is left to the customer to provide proof of lesser damage. The customer gains no user rights or ownership to the visual material through the payment of compensation.
10.2 Should visual material reported as lost be returned to May complete and intact within one year from supply, May shall refund one third of the compensation payment made by the customer.
10.3 All deliveries are made at the cost and risk of the customer. This also applies to visual material sent or passed on to a third party on behalf of the customer.
10.4 If visual material is returned without its labelling, original frame or barcode sticker, or in any other way as to necessitate repackaging, May shall charge the customer with the costs thereby incurred in accordance with the scale of charges valid at May at the time of receipt of the returned visual material.
10.5 If sealed visual material is returned open, without the written licensing agreement having allowed for use of the visual material, May shall charge the customer - despite enforcement of further claims - a layout fee.
11 Termination
11.1 Either party can terminate the contract extraordinarily if the other breaches important contractual commitments in any way and the breach of the contract is not remedied within one week from receipt of a warning. An extraordinary reason for termination is given if bankruptcy or insolvency proceedings pertaining to the assets of a party to the contract have been opened.
11.2 The use of the provided visual material is to be stopped immediately upon receipt of the termination. The visual material, together with any copies, as far as it is stored on data carriers, must be erased immediately from the computers or telecommunication systems of the customer and the erasure confirmed in writing to May upon request.
11.3 Any form of termination must be made in writing in order to be effective.
12 Assignment by Way of Security, Right of Retention, Recoupment, Assignment
12.1 If the customer enlists the services of May to provide a third party, e.g. a client, with visual material, then upon conclusion of the contract with May the customer assigns his right to claim remuneration from the third party - whom he must name specifically to May - for procurement of the visual material to May to such an extent to protect the claims of May against the customer, being thereby equivalent to the remuneration payable to May. This applies in particular to an agency enlisting the services of May. May can give the third party notice of the assignment by way of security, empowering him to provide May with all the requested information.
12.2 The customer can transfer rights or demands from the contractual relationships with May to third parties only upon the prior written approval of May.
12.3 Any form of termination must be made in writing in order to be effective.
13 Final Clause
13.1 Should one of the provisions of these general terms and conditions of business become invalid, or null and void, the validity of the remaining provisions shall remain intact. The regulation which in economic terms comes closest to that which has become invalid shall be used in its place.
13.2 These general terms and conditions of business and the written individual agreements reflect in full the agreements of the parties to the contract. Amendments and supplements must be made in writing. This also applies to a waiver of this clause.
13.3 The venue of fulfilment for the services of both parties to the contract and the sole place of jurisdiction for disputes in association with these contracts is Munich (Munich District Court 1). May is entitled to also file a suit at any other legally appointed venue, however.
13.4 German law applies.