The photographic agency Demurez Cover Arts ("DCA") operates an Internet-based photographic agency whose business is to engage into transactions with third parties regarding the use, for consideration, of rights to use photographs in digital form (hereinafter to be referred to as "Photos" or "Visual Data"). Visual Data means all Photos and related information material placed on any media made available by DCA under these General Commercial Terms and Conditions ("GCTCs"), including text, titles, captions and other information.
The present GCTCs contain, in particular, provisions for the granting, by DCA, for consideration, of, the said rights to the user (licensee).
These GCTCs constitute a legally valid license agreement between the licensee and DCA. By downloading digital data from our website and the related photo stock, by using the information provided on the website and by visiting our website, you deemed to have accepted these terms and conditions. If you do not accept these terms and conditions, you may not use our products. The provisions set out below apply to customers and their agents. The applicable version of these GCTCs is that which is in force on the date of entering into a licensee agreement under these GCTCs.
1. General subject matter of the agreement
1.1 DCA hereby grants the Licensee a licence for the use of newly purchased Photos. The Photos may be used in accordance with the following provisions of the licence agreement. The Licensee shall not have any rights other than the rights to use granted to it hereunder. DCA shall retain any and all rights not expressly granted to the Licensee hereunder.
1.2 No offer, delivery or granting of any use rights shall result in any obligations and be binding. No Photos presented on DCA's website are considered as an offer, but only a casual invitation to a customer to make an offer of an agreement.
1.3 Each customer shall, at the time of placing an order, but not later than before technically using the Photos, specify the type and scope of the intended use of the Photos. Based on the details provided by the customer, DCA shall give its written consent for the customer's use of the Photos delivered to the customer. If the customer's details are consistent with the actual use of the photos or if the actual use of the photos is not consistent with the customer's details, the said consent shall be considered as not granted.
2.1 All DCA's photos shall be considered as rights managed. In relation to such rights ("RM"), DCA hereby grants the Licensee an exclusive non-transferable right to use the managed rights acquired by the Licensee in accordance with the intended use described in clause 3. This exclusivity right may, where possible, also be acquired for a specified period of time for an additional fee.
2.2 The licence granted hereunder shall be valid and binding only after full payment is credited to DCA's account, as billed by DCA. Payment of the licence fees shall be made into DCA's account within 20 days of the date of acquiring the licence.
3. Intended use
3.1 All visual material available on DCA's website is protected by copyright.
3.2 Any photos may only be used in accordance with the intended use as paid for and covered by the licence, subject to limitations on printing, the territory of use, photo size, the type of use, the type of media, the period of use, positioning and subject to any other conditions as described in the bill issued by DCA.
3.3 No photos may be used for pornographic, defamatory, obscene, illegal or political publicity purposes. In the event of any sensitive content, including (without limitation) drugs, AIDS, sexual abuse or content, DCA shall be contacted. This shall also apply to presentations of photographic models in a way that any such presentation makes a not very positive impression on the average recipient. In such a case, too, DCA shall be contacted.
3.4 If any photo is used is a way suggesting that any person shown in the photo is directly connected with a particular theme, product or service, the photo may only be used after providing a statement containing the assurance that each person shown in the photo is only a performer and that the photo is used for illustration purposes only.
3.5 The "details" next to each photo contain information on whether on the model's (owner's) consent is required, i.e. whether the person shown in the photo (or the rightholder) has given his/her permission for reproducing the photo. The above permission should, however, always be interpreted in connection with the intended use as defined in these GCTCs. No warranty is hereby given by DCA regarding the use of any trade marks, person, name, commercial design, or regarding any registered, unregistered and/or protected works of art, buildings and designs as presented in the photos. If the Licensee is not uncertain whether or not it is necessary to obtain any additional information or rights in order to use a particular photo, the Licensee shall endeavour to obtain such information and/or rights or shall seek legal assistance.
3.6 No notes on DCA's copyright as placed next to the photos may be removed, nor any information identifying the photo and contained in the photo file may be removed.
3.7 No photo or any part of any photo may be used as part of a logotype or any unregistered trade or business mark.
3.8 The granting of any use rights hereunder shall not, in any case, be interpreted as a transfer of any copyright or moral rights. After the end of the agreed period of use, RM photos shall be entirely removed from the customer's system. Any photos not used shall be removed from the customer's electronic memory system not later than within 30 days from the date of their delivery. This shall also apply to copies or parts of any such photos.
3.9 The use of any photos shall be strictly limited to the conditions specified in the bill. This applies to, among other things, the intended use, number of copies, size, time, exclusivity, the type of media, the territory of use and other conditions.
3.10 If the provisions of the licence agreement are not complied with, the licence purchased under the agreement shall be revoked without notice from DCA. In such a case, the Licensee shall cease and and all use of any managed rights and shall send the purchased product back to DCA or remove the same. This shall also apply to any and all reproductions.
3.11 DCA shall retain the right to remove or replace any photo from or in its stock. After notification of the licence having been revoked, the Licencee shall agree not to use the photo in the future.
4. Bills and use fees
4.1 Each use of any visual material, including its publication on the Internet and/or on a CD-ROM, is subject to a fee and requires the consent of DCA. This also applies to, among other things, the use of visual material for the following purposes: private work, projects of any kind, presentations for customers, caricatures and reconstructed photographs, as well as the use of photo details which, as a result of using photomontage, photograph processing or other techniques, will become part of a new photograph.
4.2 Before using any visual material, it is necessary for DCA and the customer to agree on the fee for such use. Such a fee shall depend on the purpose for which the visual material is to be used by the customer. If the fee for such use is not agreed upon before using the material, DCA's standard fees shall apply according to the rates in force at the time of using the visual material. If the customer's details regarding the use of the material are inaccurate, fixed-amount fees shall apply.
4.3 If the customer purchases any right of use, DCA shall issue a bill, which bill shall form an integral part of these GCTCs. The bill shall specify the permitted use of the rights purchased by the customer, the fee for such use, and additional limitations on such use, if any, other than those contained in these GCTCs. The customer shall pay the fee for using the purchased rights to use photos in accordance with the conditions specified in the bill and in accordance with these GCTCs.
4.4 After the customer makes a statement of intent to fully or partially use the visual material delivered to the customer, DCA shall be entitled to issue a bill to the customer for the use rights of use as granted to the customer, even if the material has not yet been published or otherwise used.
4.5 Each bill shall be paid within 20 days of the date of bill; if the bill is not paid within this time limit, a penalty fee for delay shall apply. Payment shall be made using non-cash means of payment into DCA's bank account. (Note: All other agencies have a 30-day time limit!)
4.6 The customer number and photo number shall be specified in the payment description in the case of each payment of the fee. If such details are not provided, an additional fee for extra work shall apply, calculated on the basis of the additional work done.. In addition, in making the payment, the customer shall specify clearly which photo was used in which publication and in which location.
4.7 The fee for a correction within 14 days of the date of bill shall be 10% of the amount of the bill (at least EUR 30,00) or within 30 days of the date of bill, 50% of the amount of the bill (at least EUR 40.00).
4.8 Payment of the fee by the customer shall also be required if the customer does not use the purchased right of use and/or if the purchased visual material is not published.
4.9 For sending high resolution files, a fee of EUR 10.00 per photo shall apply. If the photo is actually used, this fee shall not be set off or refunded later.
4.10 No fees apply for sending low resolution files to produce an internal layout..
4.11 Any visual data / scanned materials requested by the customer shall be charged separately.
4.12 The prices given in DCA's offers, price lists and other materials are always exclusively of VAT and other taxes, unless stated otherwise.
4.13 In the event of unauthorised use or provision of any visual material to any third party, a penalty equal to twice the fee of use shall apply, without prejudice to DCA's right to claim compensation. Payment of the penalty shall not be interpreted as giving any ownership rights in or any right to use the visual material. DCA may pursue other claims, including compensation, to a greater extent, and/or to take legal steps.
5.1 DCA warrants that the visual data offered by DCA are free from defects. This warranty shall be valid for a period of 30 days from the purchase date. If any warranty claim is made within this period, the photo covered by the claim shall be replaced. However, no warranty is given by DCA with regard to the quality of any photograph and/or the compatibility of any visual data with various computer systems and/or applications.
5.2 The Licencee warrants that it shall keep confidential the password and login name that can be used to purchase licences for the use of photographs on the Internet. If the event of loss or unauthorised use of the password and/or login name, the Licencee shall be liable, without any limitations, for any loss and/or damage resulting from the same. The customer's right to download the purchased visual data shall be exercised by downloading the same from DCA's website. DCA shall not be obligated to make such data available permanently.
5.3 Neither DCA nor its licencors shall be liable for any accidental, direct or indirect loss or other damage resulting from the customer's licence for using a photo. This shall also apply to liability for indirect losses, loss of profit or third-party claims. No express or implied warranty is hereby given by DCA regarding any photograph.
5.4 DCA's liability for any loss or damage caused as a result of or in connection with the use of any photograph by the customer or the customer unable to use the same shall be limited, if permitted by law, to ten times the price paid by the customer for such a photograph. The information provided and warranties expressed by DCA shall apply only and exclusively in relation to photographs in the form as delivered by DCA and shall become void if the photographs are used by the customer in a way that is forbidden by these GCTCs of if the customer is in breach of the licence agreement.
5.5 Any data and/or other work downloaded by the customer from DCA"s online database shall be downloaded at the customer's sole risk. DCA shall not be required to pay any compensation for any loss in or damage to the customer's software and/or hardware.
5.6 DCA warrants that it is authorised to grant licences. DCA warrants to the best of its knowledge, but without any warranty whatsoever, that the photographs as presented do not infringe any copyright, proprietary rights or moral rights. However, no claims may be made against DCA if any photograph infringes any third party right despite the precautions taken by DCA. If the model (or owner) gives his/her permission for using a given photograph, the photograph shall be marked properly. The marking must not, however, be interpreted as a warranty and must also be considered within the context of the permitted use.
5.7 The customer may not claim access to DCA's photo stock either online or by telephone. DCA may, at any time, deactivate its online database at any time temporarily or permanently and/or change, remove and/or supplement any content of the database. In addition, DCA may, at any time, remove any photograph and/or information from its stock and/or change and/or supplement the same.
5.8 If DCA does not have the model's (owner's) permission for use of a particular photograph or if the use, by the customer, of such a photograph is not permitted by these GCTCs, the customer shall hold harmless DCA and its executives from and against any compensatory claims, liability, expenses and claims resulting from actual or threatened lawsuit, action or court proceeding regarding the use of the photograph by the customer, if any such lawsuit or action relates to lack of permission from the model (or owner) or from the customer's unauthorised use of the photograph.
6. Data protection and security
6.1 All personal data shall be stored in machine readable and machine processable Such data may be analysed for internal marketing purposes, but they shall be treated as strictly confidential and shall not be disclosed to any third party. Unless otherwise specified by the customer expressly, the name of its business, as well as the customer's logotype, may be used by DCA for advertising purposes and for presentation of credentials.
6.2 DCA shall use any and all security measures to protect the data managed by DCA in accordance with statutory provisions. However, no relevant warranty may be given, therefore DCA shall not be liable in this respect.
7. Copyright and author's copy
7.1 Each photograph used by the customer should be marked with information on the agency and the copyright on the photograph in a way that arouses not doubts. If no copyright information is included, DCA shall be entitled to charge the customer an additional fee equal to 100% of the amount of the corresponding bill.
7.2 In the case of all materials published in print, two author's copies shall be sent to DCA without any special request from DCA and without any payment by DCA.
8.1 All legal and business relations shall be governed only and exclusively by these GCTCs. DCA may, within the limits of statutory provisions, change these GCTCs at any time. The applicable version of these GCTCs is that which is in force on the date of entering into a licensee agreement under these GCTCs. Special changes and/or arrangements shall only be valid if they are made in writing. This shall also apply to cancelling the written form requirement.
8.2 If any provision of these GCTCs becomes ineffective and/or invalid in full or in part, such ineffectiveness and/or invalidity shall not affect the effectiveness and/or invalidity of the agreement as a whole. The ineffective and/or invalid provision shall be replaced with an effective and valid provision that is as close as possible to the intended economic purpose of the ineffective and/or invalid provision. This shall apply accordingly to gaps in the provisions of the agreement.
9. Other provisions
9.1 DCA reserves the right to provide all notifications to the customer by electronic means. The customer agrees and accepts that any notification provided to it by electronic means is valid and that it shall not request the same in paper form.
9.2 Any and all legal relationships shall be governed by the laws of Austria. The place of performance of the agreement and the place of business shall be the city of Vienna, Austria, and any actions shall be filed with and resolved by a Vienna court with subject-matter jurisdiction. The agency may hold the Licencee liable through an authority with jurisdiction over the area where the licencee resides or where the licencee's registered office is situated, or through any other relevant authority.
9.3 The laws of Austria shall also apply to deliveries abroad.
9.4 If any provision of the agreement is or becomes ineffective and/or unenforceable at the time of signing the agreement or thereafter, this shall not affect the effectiveness of the remaining provisions of the agreement. The ineffective and/or unenforceable provision shall be replaced with an effective and enforceable provision that is as close as possible, in its effect, to the intended economic purpose of the ineffective and/or unenforceable provision. This shall apply accordingly to gaps in the provisions of the agreement.
Vienna ,1st of February 2011
Demurez Cover Arts