General terms and conditions of MottoMotive
03/2006


A. General

1. MottoMotive keeps an online image database for the brokering of images. This can be used as a presentation and sales medium by image authors and for researching images by image users. MottoMotive offers providers and users of images a service which shortens the communication paths between them considerably.

2. All offers, deliveries, electronic transfers and the issuance of user rights by image authors are always effected on a no-obligation and non-exclusive basis under the terms and conditions set out below.

3. Terms and conditions of the user referenced in order forms, delivery confirmations etc. are hereby expressly contradicted. The terms and conditions of MottoMotive shall apply exclusively. All subsidiary agreements are subject to written confirmation.

4. A basic distinction is made in the MottoMotive image database between reproducible image files and image files in a low resolution optimised for the screen that are used for presentations. All files are copyrighted. The author acquires a right to a fee from the user in line with the current price list of MottoMotive as soon as the user starts the file transfer of an image file marked as reproducible. The price list can be viewed on our website. The right to a fee remains even if the file transfer is aborted during the transfer process, irrespective of the reason for terminating the transfer. However, the user has the right to repeat the transfer of the data of the same file free of charge until the transfer of the data is successfully completed.
If the transfer fails for reasons for which MottoMotive is responsible, the triggered claim to a fee lapses if MottoMotive is unable to make good the transfer retrospectively.

When ordering the reproducible image files, the user must inform MottoMotive of the nature of the intended use. The author and/or MottoMotive as the invoicing party give their consent to the user to use the image file provided on the basis of the information given by the user. Consent is deemed granted on receipt of the MottoMotive by the user.
If the information given by the user does not correspond to the nature of use, the consent for use by the author and/or MottoMotive is deemed not granted; MottoMotive accepts no liability in this case and is to be indemnified again all compensation claims from third parties.

5. All image files stored in the MottoMotive database for presentation purposes may only be transferred to the user's computer for private layout purposes.
Image material provided or transmitted digitally remains the property of the author at all times. Image files marked as reproducible are provided exclusively for the purchase of user rights according to the terms of copyright on a temporary basis, for the nature of use agreed between the user and MottoMotive and the resulting period of use, and in accordance with the terms of the MottoMotive price list. All electronic image material provided must be deleted from all storage media without prompting once the printed documents have been produced and/or usage is finished, and any other materials generated from this material must be destroyed. Image files not designated as reproducible which have been stored in the database for presentation purposes can be used, for layout purposes only, without further written consent from the author/supplier and must similarly be deleted and destroyed without prompting after use. This also applies to new files created through editing from files provided by us and other image materials produced from these files.

6. All digital data from images for which the user has acquired a usufructuary right as per agreement through the payment of a user fee must be deleted when the user right expires. No fees will be refunded for non-use of the user right.

7. The user does not acquire ownership. He or she is not entitled to assign the user right, which is purchased for private purposes, to the image data material provided and/or called up to a third party.
This also applies in the case of the payment of other costs and fees which are generated and charged under these conditions.

8. The image database is copyrighted and is the property of MottoMotive. Any archiving of its data, whether for private or commercial use, is prohibited and will entitle MottoMotive to demand the immediate deletion of all archived files, the destruction of all other materials generated from these files and/or damages, irrespective of any compensation claims of third parties.


B. Fees

1. The use of image files marked as reproducible is subject to a fee. This also applies to the use of an image or image file as a template for drawings, caricatures, edited photographs, layout purposes and customer presentations, as well as to the use of image details which become part of a new pictorial representation by means of montage, modification, electronic image editing or similar techniques.
This clause excludes those files stored for presentation purposes and marked as such which are supplied to the user free of charge for the creation of internal layouts.

2. All fees quoted in price lists, offers and other documents are net, exclusive of statutory value added tax and minus the social security contribution for self-employed artists.

3. MottoMotive/the author will charge a premium on the fee for the intended use for images/pictures taken in unusual circumstances and incurring extraordinary costs (expedition, aerial, underwater pictures and pictures of models).

4. The fees are in line with the current price list of MottoMotive. They only apply for one-off use for the specified purpose, in the stipulated scope and in the agreed language area. Any other use is subject to a further fee and the prior written consent of MottoMotive.

5. If an object with images (such as any kind of print medium) is depicted in a new medium, a further fee must be paid for the image visible on this object, regardless of any fees for user rights for the same image already paid in the context of the original use. This particularly applies to use for advertising purposes. The user must inform MottoMotive of the new intended use and seek written consent for the use.

6. In the case of unauthorised use, e.g. false information about the nature of use and/or forwarding of the image files or images stored in the MottoMotive database, a minimum fee in the order of five times the user fee will be payable, subject to further compensation claims, in line with the fee recommendations of the Photo Marketing Association.

7. Exclusive rights or retention periods require a separate agreement. In these cases, a minimum surcharge of 100% of the respective basic fee is incurred.

8. The image ID number, the name of the image file and the name of the photographer/author of the image must always be specified when paying fees to MottoMotive.


C. Restriction on availability, liability, exploitation rights and copyrights

1. All image files acquired must be treated as originals. A user right is only assigned to the copyright to the image. This particularly applies to image files which by the nature of the contents of the image are subject to a further copyright (e.g. works which come under the category of fine or visual arts). It is the responsibility of the user of the image files to seek exemption from all other copyrights and obtain publication authorisations for collections, museums etc. The image files are only provided by MottoMotive for the contractual use and must be deleted from all electronic storage media again immediately once they are no longer required for use. The rights granted under the terms of the contract only apply to one-off use in the agreed scope. Repeated uses or other extensions of the original user rights granted are only permitted subject to prior written consent of MottoMotive. Prior written consent must particularly be obtained if there is an intention to use the image material for commercial purposes. If any commercial use could invade the privacy of a person depicted, it is the responsibility of the user to seek the consent of the person in question. If there are any compensation claims from the injured party on the grounds of a failure to obtain consent, the user shall indemnify MottoMotive and the author against such compensation claims.
The consent of MottoMotive to transfer user rights cannot be dispensed with on the grounds that the transfer took place as part of the sale of a company as a whole or the sale of parts of a company (§ 34 Paragraph 3 of the German Copyright Act). This clause is to be regarded as a separate agreement in accordance with § 34 Paragraph 4 of the German Copyright Act.

2. No alteration of the copyrighted work through reproduction, scanning, modification or electronic means is permitted. Exceptions are subject to individual written agreement. Infringements of this clause will entitle the author or MottoMotive to charge five times the usual fee for this kind of work in line with the fee recommendations of the Photo Marketing Association, or an individually agreed fee.
Image files not designated as reproducible which are stored for presentation purposes and can be used and amended by electronic means free of charge to the user exclusively for generating internal layouts are excluded from this.
The publication of any new image works thus created is not permitted. These must also be deleted from all storage media after use.
Unusual uses and misrepresentations in images or words and uses which could result in the disparagement of persons depicted are impermissible and will make the user liable for damages. The user shall free MottoMotive and the author from any compensation claims from third parties in such cases.

3. Reproductions and electronic storage of image data purchased through MottoMotive for the user's archiving purposes and forwarding to third parties are not permitted. Special cases are subject to our written consent and a special fee. If this clause is violated, however, MottoMotive will be entitled to demand damages. This does not affect any claims for compensation on the part of the author.
All users are obliged, without prompting, to inform us in writing at all times if and to what extent they have duplicated, produced other templates for their own archiving purposes or stored digital data from the images purchased from MottoMotive without our consent. Any copies etc. produced with the consent of the author must be surrendered after use. Copies etc. produced without consent must be surrendered immediately without prompting. Digitally stored image files must be deleted.

4. The user is obliged to observe the publishing principles of the German Press Council (Press Code). The user bears responsibility for any text. MottoMotive and the author assume no liability for violation of the general right to privacy or copyright by improper or distorting representation in picture or text. They shall be indemnified against any compensation claims from third parties. The user bears sole liability towards any third party for damages resulting from the violation of such rights.

5. The publication of depictions of famous persons is only possible with their name and only for editorial purposes.

6. MottoMotive or the author cannot assume any compensation claims arising from the use of image files purchased through MottoMotive. The person responsible for the respective printing unit or other medium bears sole responsibility in every instance in respect of any invasion of the privacy of depicted persons, including the responsibility devolving from the right to his or her own picture and for any use of the image material handed over for commercial purposes without first obtaining the consent of the author. Where necessary, and where he is responsible for the above, the user shall free MottoMotive and the author from any compensation claims from third parties.

7. The forwarding of image files purchased through MottoMotive or reproduction rights is subject to a separate contract.

8. MottoMotive and/or the author expressly reserve the right to assign secondary rights to collecting societies and do not recognise clauses by which the acknowledgement of further rights is to be excluded with the acceptance of a fee.


D. Copyright, specimen copy

1. With reference to § 13 of the German Copyright Act, we explicitly demand a copyright note, and one that leaves no doubt as to the picture to which the note refers. Collective picture credits are only adequate in this context if it is again possible to assign credits to the respective pictures without any doubt. Contrary to the above clause, special agreements between the user and author based on mutual consent are possible and are to be remunerated with the payment of an agreed increased fee.
Furthermore, MottoMotive must be told when settling charges exactly which image was used in which publication and where. Failure to name each picture will entitle the author to damages in the form of a surcharge of 200% on top of the respective user fee. The user shall free MottoMotive from claims from third parties resulting from any omission of copyright notes.

2. This also applies to advertisements, flashes in television and films or other media, unless another special agreement has been expressly reached between the author and user.

3. Unless explicitly specified above, all use is subject to the terms of the German Copyright Act.

4. MottoMotive must be sent at least two complete specimen copies of any publication in printed products, unprompted and free of charge, in accordance with § 25 of the German Act concerning the Law of Publication.


E. Terms of payment and place of jurisdiction

1. All invoices are always payable net only within 10 days.

2. The sole place of jurisdiction and place of performance for both parts, insofar as this is legally admissible, is Bielefeld.

3. German law also applies to all deliveries/transfers abroad as agreed.

4. If one of the clauses of these terms of delivery and terms and conditions of business is not valid, this will not affect the validity of the remaining clauses.

 
 
(c) 2005 www.mottomotive.de