General terms and conditions of delivery and business (herein after referred to as standard terms and conditions) of lobOlmo – Dr. Jutta Ulmer und Dr. Michael Wolfsteiner GbR (herein after referred to as lobOlmo)

I. Application

  1. The following standard terms and conditions shall apply to all of orders, offers, deliveries and services executed by lobOlmo.
  2. They shall be deemed to be binding on both parties upon acceptance of lobOlmo’s delivery, service or offer by the customer, however no later than upon the photographic material and textual material (herein after referred to as material) being accepted for publication.
  3. If the customer does not accept these standard terms and conditions, it shall lodge written notification to this effect within three work days. Any alternative standard terms and conditions on the part of the customer are hereby rejected. Alternative standard terms and conditions on the part of the customer shall be deemed to be void unless lobOlmo agrees in writing to be bound by them.
  4. In the absence of any express reference to the contrary, these standard terms and conditions shall also apply to all of lobOlmo’s future orders, offers, deliveries and services under the ongoing business relationship notwithstanding the absence of any express reference to them.

II. Commission products

  1. Any cost estimates provided by lobOlmo shall be given without engagement. If any increase in costs occurs during production, lobOlmo shall only report such increase when it becomes evident that the original estimate of the total costs is likely to be exceeded by more than 15 %. If the planned production period is exceeded for reasons beyond the lobOlmo’s control, additional remuneration shall be paid on the basis of the agreed time-based fee or in the form of a reasonable increase in the flat-rate fee agreed upon.
  2. lobOlmo may commission third party services which are required for the execution of the production on behalf and for the account of the customer and with the customer’s authorization.
  3. Subject to any other provisions, lobOlmo shall be responsible for selecting the material to be presented to the customer for approval at the conclusion of production.
  4. The material shall be deemed to have been duly accepted in accordance with the terms of the contract and be free of any faults unless notification to the contrary is served upon lobOlmo within two weeks of submission of the material.

III. Provision of photographic and textual material (analog and digital)

  1. These standard terms and conditions shall apply to all material submitted to the customer regardless of its degree of completion or technical form. They shall expressly also apply to material transmitted electronically or digitally.
  2. The customer acknowledges that the material provided by lobOlmo constitutes copyright material as defined in Section 2 (1) No. 5 of the German Copyright Act.
  3. Any suggestions submitted by the customer concerning modifications or adjustments shall be deemed to constitute individual services which shall be subject to separate remuneration.
  4. The material provided shall remain lobOlmo’s property notwithstanding the fact that consideration may have been received for it.
  5. The customer shall treat the material carefully and may only make it available to third parties for internal business purposes, i.e. for viewing, selection purposes and technical editing.
  6. Any complaints concerning the content of the delivery or the content, quality or state of the material shall be lodged within 48 hours of receipt. Failing this, the material shall be deemed to have been received in proper condition, in conformance with the contract and as described.

IV. Utilization rights

  1. The customer shall fundamentally only receive simple rights for one-time utilization. Subject to any other agreements, the right of publication on the Internet or inclusion in digital databases shall be limited to the duration of the publication period of the corresponding or a comparable printed item.
  2. Exclusive utilization rights, exclusive rights for certain geographic territories or periods of time shall be subject to separate agreement as well as a surcharge of at least 100 % on top of the basic fee in question.
  3. Upon the material being delivered, only the utilization rights shall be granted for one-time use of the material for the purpose specified by the customer and in the publication, medium or data vehicle which has been stated by the customer or can be reasonably assumed in the light of the circumstances surrounding the placing of the order. In the case of any doubt, the purpose for which the material has been supplied as evidenced by the delivery note or the recipient address shall be decisive.
  4. Any use, exploitation, dissemination, copying or publication going beyond the scope provided for in Section 3 above shall be subject to separate remuneration and require lobOlmo’s prior written approval. This shall particularly apply to
    • secondary exploitation or publication including but not limited to anthologies, product related brochures and advertising.
    • any other types of reprinting, any editing of or modifications or changes to the material.
    • digitalization, storage or duplication of the material on data media of any type (e.g. magnetic, optic, magneto-optic or electronic media such as CD-ROM, DVD, hard disks, RAM, microfilms etc.) other than for the technical editing and management of the material pursuant to III 5. herein.
    • any reproduction or utilization of the data on digital data media, inclusion or display of the data on the Internet or in on-line databases or other electronic archives (including the customer’s internal electronic archives).
    • the transmission of digitalized material by data transmission lines or on data media for reproduction on screens or for the production of hardcopies.
  5. Any modifications to the photographic material using photo composing, mounting or electronic means to produce a new copyright work shall require lobOlmo’s prior written approval and shall be designated as such by [M]. In addition, the photographic material may not be copied in drawing form, recreated photographically or used in any other manner as a motive.
  6. The customer may not transfer the rights of utilization or any part thereof granted to it to any third parties unless these are members of its group or subsidiaries. All use, reproduction and transfer of the material shall be subject to the condition that the copyright information stipulated by lobOlmo be included in such a way that it can be clearly allocated to the picture in question.
  7. The grant of the rights of utilization shall be subject to the condition precedent of full settlement of all of lobOlmo’s claims for payment under the applicable contractual relationship.

V. Liability

  1. lobOlmo shall not be held liable for the breach of any rights held by persons or objects depicted in the photographic material unless a duly signed release is enclosed. The customer shall be responsible for acquiring the rights of utilization over and above the copyright to the photograph in question and for obtaining releases from collections, museums etc., e.g. for images showing works of applied or plastic arts. The customer shall be responsible for the legend as well as the context in which the photograph is used.
  2. The customer shall assume responsibility for the due and proper utilization of the material as of the date of delivery.

VI. Fees

  1. The agreed fee shall apply. If no fee has been agreed upon, it shall be determined on the basis of the prevailing list of photographic fees issued by Mittelstandsgemeinschaft Foto-Marketing (MFM). The fee shall be subject to value added tax at the applicable rate.
  2. The fee shall be deemed to constitute good consideration for the one-time utilization of the material for the agreed purpose in accordance with Section IV.3 herein.
  3. The fee shall not include any costs and expenses arising in connection with the order (e.g. cost of materials, laboratory, models, props, travel, other necessary expenses), which shall be borne by the customer.
  4. The fee shall be payable upon delivery of the material. If the results of the production are supplied in parts, the corresponding part payment shall fall due upon receipt of the corresponding delivery. In the case of commission productions, lobOlmo may request advance payments matching the percentage of completion of the production.
  5. The fee provided for in Section VI. 1 herein shall be payable in full notwithstanding the fact that the material ordered and supplied is not published.
  6. Only counter-receivables which are not disputed or have been upheld in a court of law may be netted or shall be subject to a right of retention. Moreover, counter-receivables which are disputed but on which a decision is soon to be made may also be netted.

VII. Return of material

  1. Analog material shall be returned in the form in which it was supplied immediately after it has been published or utilized for the agreed purpose provided that this is no later than three months after the date of delivery; two sample copies of the publication in which the material appears shall be enclosed. An extension to this three-month period shall require lobOlmo’s written approval.
  2. Digital data shall be deleted and/or the data media destroyed upon completion of utilization. lobOlmo shall be under no duty to ensure the continued existence and/or possibility of renewed delivery of the data.
  3. If at the customer’s request or with its approval lobOlmo supplies material solely for the purpose of determining whether it is suitable for use or publication, the customer shall return analog material no later than one month of receipt in the absence of any other period stated on the consignment note. Digital data shall be deleted and/or the data media destroyed or returned. This period may only be extended with lobOlmo’s written consent.
  4. The customer shall return the material at its own cost in standard packaging. The customer shall bear the risk of loss or damage during transportation until the material reaches lobOlmo.

VIII. Penalties, damages

  1. In the event of any unauthorized utilization, use, reproduction or disclosure of the material (i.e. without lobOlmo’s consent), the customer shall be liable to pay a penalty equalling five times the applicable fee for each individual instance, it being understood that this shall not operate to restrict any other remedies available to lobOlmo.
  2. If the copyright notice is missing, incomplete, in the wrong position or not possible of being clearly allocated to the picture in question, a surcharge of 100 % of the agreed or customary fee shall be payable.

IX. General provisions

  1. The contractual relationship anticipated by these standard terms and conditions shall be subject to German law including in the case of deliveries to foreign destinations.
  2. Any additions or modifications to these standard terms and conditions shall be in writing only.
  3. If any of the provisions contained herein are void, this shall not prejudice the validity of the remaining provisions. In such a case, the Parties undertake to replace the void provision with a valid one coming as commercially and economically close as possible to what they intended with the void provision.
  4. The place of fulfillment and the legal venue shall be lobOlmo’s domicile in cases in which the customer is a full merchant as defined by German commercial law.