Terms of Business and Delivery Conditions
I. General
1.1 All quotations and deliveries shall be made and all rights of use granted entirely without obligation in accordance with the following Delivery and Business Conditions. The Delivery and Business Conditions shall - with the exception of Items 10.1 and the return shipment obligation - also apply to material that is transmitted in digital form. Placement of order or acceptance of delivery by Client shall constitute acknowledgement of the Delivery and Business Conditions.
1.2 In the event of orders for third parties (agency business) Client shall be obliged to agree the following Delivery and Business Conditions with its customer.
1.3 Any divergent business conditions of Client which Vanit has not explicitly acknowledged in writing shall not be binding. Any business conditions of Client to which reference is made in order forms, confirmations of delivery etc. are hereby rejected.
1.4 Supplementary verbal agreements shall not be valid unless made in writing. The same shall also apply to any agreement to dispense with the requirement of written form.
II. Definitions
2.1 Material shall mean pictorial or text material.
2.2 Pictorial material shall mean not only photographic prints, slides, negatives, drawings and computer graphics, but also all illustrations and graphics stored on data media or transmitted or stored by other technical means (e.g. online).
2.3 Use of material shall mean, regardless of the technology, any physical or non-physical form of reprint, reproduction, projection, copy, layout and representation in print and/or electronic media including off-line data media (e.g. CD-ROM, CD-i), databases and all on-line services and other networks (e.g. Internet).
III. Provision of Material
3.1 A loan contract shall come into being upon acceptance of the material. Material supplied shall remain the property of Vanit. It shall be made available temporarily for the sole purpose of acquisition of rights of use within the meaning of copyright law. The material shall be returned in its entirety.
3.2 Complaints relating to the content, completeness or condition of the material consignment must be notified to Vanit without delay, i.e. within 24 hours after receipt of the material consignment. If this is not done the material consignment shall be deemed to have been accepted as being in perfect condition.
3.3 The cost of shipment shall be borne by Client. On transfer of the material, the fee risk and the risk of loss and deterioration of the material shall pass to Client. The return shipment risk shall be borne by Client.
3.4 All materials shall be handled with the utmost care.
IV. Return of Materials
4.1 Material supplied marked "RUSH" ("EILT") shall be returned not later than 48 hours after arrival if the user does not accept the offer made by VANIT. In the event of failure to comply with the deadline a blockage charge pursuant to Clause 10.1 shall be payable.
4.2 Material supplied with no special mark shall be returned to VANIT within three weeks after the date of shipment of the material consignment if the user does not accept the offer made by VANIT. In the event of failure to comply with the deadline a blockage charge pursuant to Clause 10.1 shall be payable.
4.3 Published material must be back in the possession of VANIT not later than 14 days after publication. In the event of failure to comply with the deadline a blockage charge pursuant to Clause 10.1 shall be payable.
4.4 In the cases covered by Clauses 4.1 to 4.3 Client shall be at liberty to show that any loss/damage incurred was smaller or non-existent. Similarly, VANIT shall be at liberty to show that any loss/damage incurred was larger.
4.5 Client shall bear the costs and risks of safe keeping and return of the material. This shall include in particular careful packing of the material and the choice of a suitable form of shipment which enables Client to prove return of the material and its arrival at VANIT. Client must enclose with return consignments of material a consignment note indicating the contents of the consignment.
V. Rights of Use
5.1 VANIT shall grant Client a non-exclusive right of use solely for the purpose agreed between Client and VANIT; such right of use shall not be transferable except with the prior written consent of VANIT.
5.2 For every use of material a copyright notice pursuant to Section 13 of the [German] Copyright Act shall always be required, and this shall be specified to Client by VANIT. This copyright notice shall be clearly associated with the text/pictorial contribution. In the event of failure to print such notice a penalty of 100 % of the user fee in question shall be due and payable. Client shall be at liberty to show that any loss/damage incurred was smaller or non-existent. Similarly, VANIT shall be at liberty to show that any loss/damage incurred was larger.
5.3 Client shall not be permitted to grant further rights of use in the material.
5.4 The material may be made accessible to third parties solely for internal production purposes and/or for screening the selection. Passing of material to other editorial offices and/or departments (e.g. archive of the same publishing company or third-party publishing companies, agencies etc.) shall not be permitted except with the prior explicit written consent of VANIT.
VI. Processing Material
6.1 Changes in the material by means of photocomposition, montage or other comparable electronic aids shall not be permitted except with the prior written consent of VANIT. Neither may the material be copied by drawing or by photography. In the event of breach of the aforementioned obligations a penalty of five times the relevant user fee shall become due and payable.
6.2 Duplication of the material and its storage in whole or in part by means of electronic aids shall be permitted solely for the purpose of contractual exercise of the single right of use. Any data storage - including interim storage - of the material shall be completely deleted after exercise of the agreed right of use. Client shall not be permitted to archive the material in any form whatsoever for its own and/or third-party purposes. In the event of breach of the aforementioned obligations a penalty of ten times the relevant user fee shall become due and payable.
6.3 In the cases covered by Clauses 6.1 and 6.2 Client shall be at liberty to show that any loss/damage incurred was smaller or non-existent. Similarly, VANIT shall be at liberty to show that any loss/damage incurred was larger.
VII. Third-party Rights/Indemnification
7.1 Client shall be obliged at its own expense and risk to clarify any copyright and other rights in the depicted objects and any rights which individuals may have in their own image and other personal rights and to obtain any necessary prior consent to publication - e.g. for advertising use.
7.2 Client shall be obliged at its own expense and risk to clarify any copyright and other rights in the depicted objects and any rights which individuals may have in their own image and other personal rights and to obtain any necessary prior consent to publication - e.g. for advertising use.
7.3 VANIT shall accept no responsibility for the use of pictorial material on which brands and comparable proprietary rights are depicted. Client shall bear responsibility for obtaining any necessary prior consent.
7.4 Any third-party declarations of consent which may be necessary shall be submitted to VANIT by Client before publication; if this is not done, publication shall be prohibited.
VIII. Indemnification
8.1 Client shall indemnify VANIT against all claims made against VANIT - on whatever legal grounds - as a result of the use made of the material.
IX. Fees / Voucher Copies
9.1 Every use of VANIT material shall be subject to payment of a fee.
9.2 Fee rates shall be agreed before use; in cases of doubt the invoice price shall be deemed to be agreed. The fee for layout and presentation shall be charged by VANIT at the usual market rates, subject to a minimum of Euro 80.--.
9.3 All fee agreements shall apply only to single, non-exclusive use for the purpose agreed between Client and VANIT. Every additional use shall be subject to a fresh fee and shall require the prior written consent of VANIT.
9.4 In addition to reproduction in print media Client shall not without the prior written consent of VANIT be entitled to make the material accessible to third parties either in whole or in part within databases or networks (e.g. on-line services, Internet) either belonging to Client or financially and/or organisationally associated with Client.
9.5 In the case of selection consignments VANIT shall charge normal commercial handling charges, which shall be based on the nature and extent of the work occasioned by material research and material handling and shall be not less than Euro 50.--. Handling charges shall be invoiced separately. No rights of use or ownership shall be acquired by virtue of payment of handling charges or shipping costs. Handling charges and shipping costs may not be offset against user fees.
9.6 VANIT shall be entitled to charge Client normal commercial rates for the cost of duplicating the material, if such duplication is necessary for compiling the selection consignment.
9.7 For refurbishing of material returned without text label, original frame or barcode label, VANIT shall charge Client refurbishing costs at normal commercial rates. If, without any use having been agreed, VANIT receives back in an open condition material that was shipped sealed, VANIT shall be entitled to charge Client a layout fee at normal commercial rates. This shall be without prejudice to any further claims by VANIT.
9.8 The agreed use shall be subject to a fee regardless of whether it is exercised.
9.9 In the event of unauthorised use of material Client shall be obliged to pay five times the usual fee. Client shall be at liberty to show that any loss/damage incurred was smaller or non-existent. Similarly, VANIT shall be at liberty to show that any loss/damage incurred was larger.
9.10 Client shall be obliged to make available to VANIT free of charge two complete copies (i.e. magazines, etc.) containing the pictorial material. The same shall apply to products on which VANIT material is depicted.
X. Liability
10.1 For loss of or (partial) damage to the material or damage precluding further use of the material, compensation shall be paid in accordance with the scale of charges (Section 11). Client shall be at liberty to show that any loss/damage incurred was smaller or non-existent. Similarly, VANIT shall be at liberty to show that any loss/damage incurred was larger.
10.2 VANIT accepts no liability for any loss of production, disadvantage or loss/damage arising from non-arrival of supplies of material. The same shall also apply to pictorial/text reservations.
XI. Charges
11.1 Charges for exceeding deadlines (blockage charges) per item per day Euro 1.--.
11.2 Charges for loss of or (partial) damage to material or damage precluding further use of the material
- per duplicate cost of restoration (material, laboratory, (personnel) expenses, e.g. couriers) Euro 150.-.
- per original item: Euro 1500. -.
11.3 Blockage charges shall be charged to Client until the day on which the material is returned to VANIT or a written notification of loss is received by VANIT.
11.4 If materials notified and charged for as lost are found and returned within one year after delivery, VANIT shall refund one third of the loss charges paid.
11.5 For rewriting an invoice VANIT shall charge Client a flat rate of Euro 20.--.
11.6 The cost of obtaining or arranging third-party material shall be charged to Client by VANIT on the basis of expense.
XII. Terms of Payment
12.1 Charges and fees shall be subject to the value-added tax in force from time to time. Invoice amounts shall be due and payable immediately on a net basis without deductions and shall be paid to VANIT in Euro free of expenses.
12.2 In the event of arrears of payment VANIT shall be entitled to charge default interest at the rate of 4% above the prevailing discount rate of the German Federal Bank (Deutsche Bundesbank).
XIII. Closing Provisions
13.1 Place of performance shall be München/Germany.
13.2 For all present and future claims arising from business with full merchants including claims arising from bills and cheques, München shall be the exclusive place of jurisdiction. München shall also be the place of jurisdiction if Client has no general place of jurisdiction within Germany, if Client has moved its registered office or normal place of residence away from Germany or if its registered office or normal place of residence is not known at the time of bringing the action.
13.3 The contractual relationship shall be subject to German law, even if international German private law makes reference to a foreign legal system.
13.4 In the event of any provision of these Delivery and Business Conditions being or becoming invalid, the validity of the remaining provisions hereof shall not be affected thereby.
March, 2005 |
