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Westend61
Rights Managed Licence Agreement
General
1. This legal agreement applies to Rights Managed Imagery. Regarding Royalty Free Imagery please see the respective Westend61 End User Licence Agreement for RF Imagery.
2. This is a legal agreement between you, hereinafter referred to as “the Licensee”, and Westend61 Toth, Staufer & Bock oHG, hereafter called “Westend61”. This agreement shall apply to all business transactions between the Licensee and Westend61 or a resell agent of Westend61 regarding Westend61 images.
3. The term “image” shall be defined as any image and associated documented information on any medium whatsoever which may have been provided by Westend61 under this agreement, including texts, headings, captions or information. “Rights Managed” means any controlled Licence as defined and granted by Westend61 or a resell agent on behalf of Westend61 during the period of this contract in respect of any Image defined by Westend61 as Rights Managed and combining rights controlled by: territory, period, media, industry, print run and other relevant criteria. The Licensee undertakes to pay a licence fee according to the agreement of the invoice and this agreement for Rights Managed Images.
4. The “invoice” shall be issued by Westend61 or Westend61’s resell agent and shall constitute an integral part of this Agreement. It shall, in unlimited form, comprise the admissible intended use of the selected images, any licence limitations whatsoever in addition to those specified in the Agreement as well as the price of the licence for the images concerned.
5. The use of images includes any form of copying or publication of the whole or a part of any image, whether by printing, photography, photocopying, slide projection (whether or not to an audience), layout or presentation, use in a production process, electronic, digital or mechanical means, use as a reference by an artist or in an artist’s illustration or by any other means. This further includes the distortion or manipulation of the whole or a part of the image (for example, by computer, electronically, digitally by an artist or by any other means), even though the resulting image may not appear to a reasonable person to be derived from the original image. It also includes distribution in whole or in part of any image via television, cable, and telecommunications network or internet transmission.
6. When placing an order and before making technical use of the images, the Licensee shall indicate the nature and scope of intended use. In accordance with the Licensee’s statements, Westend61 shall give its written consent to make use of the delivered images. If the ordering party’s statements do not conform to the actual nature of use or if the actual use does not conform to the ordering party’s statements, Westend61 is understood to not have granted the consent to use.
7. If you are entering this agreement on behalf of your employer, the licence granted and restrictions and limitations recited herein apply to your employer as well as to you as a representative of your employer. Should you cease working for your employer, your employer may continue to operate under this Agreement.
8. The latest version of this EULA, as amended, shall be applicable. Any other general agreements which may be in conflict with this EULA, deviate from or complement it in any way, shall not become an integral part of this contract even if we are aware of their existence unless we have expressly acknowledged them in writing to be effective.
Grant of Rights and License Restrictions
1. Subject to other provisions made in the invoice, Westend61 shall grant the Licensee a non-exclusive, non-sub-licensable and non-assignable right to publish the images in part or in whole via any medium and any means whatsoever, distort or manipulate the images in part or in whole.
2. Use of the images shall strictly be limited to use, medium, period, print, positioning, size of image, territory and other conditions indicated on the invoice. For the use of Royalty-Free images, please refer to the Westend61 EULA for RF images.
3. No property rights or copyright shall be transferred by granting rights of use. The images shall only temporarily be placed at the Licensee’s disposal for the agreed type of use. After this period has ended, the images must be deleted from the Licensee’s electronic memory systems. Any images which have not been used must be deleted from the Licensee’s electronic memory system within thirty (30) days of delivery at the latest.
4. It is forbidden to use the Images or portions of them for the production of pornographic, defamatory, libellous or defamatory materials, or allow this to other parties, whether directly or in context or juxtaposition with other materials. In connection with a subject that would be unflattering or unduly controversial to a reasonable person, including but not only: sexual issues, AIDS, serious physical or mental diseases, drug abuse, etc., the Licensee must accompany each such use with a statement that indicates that the person is a model and that the Images are being used for illustrative purposes only. If the Licensee intends to use the Images for such sensitive issues, then he is obliged to inform and ask for permission of such application with Westend61 beforehand.
5. The images may not be used as or integrated into logos, registered trademarks or service marks.
6. The Licensee accepts and warrants that the use of the Images shall not infringe any third party rights, of any nature, and any liability for the infringement of third party rights, of whatsoever nature, shall rest with the Licensee. Westend61 grants no rights and makes no warranties with regard to the use of names, trademarks, trade dress, registered, unregistered or copyrighted designs or works of art or architecture depicted in the Images, and Licensee must satisfy itself that all the necessary rights or consents regarding any of the above, as may be required for reproduction, have been obtained.
7. The Licensee can contact Westend61 or Westend61’s resell agent to ascertain the release status of the images, i.e. whether a model release or property release for the respective image has been substantiated to be available, either in supplemental information via the images on the web-site or on the invoice or in any other communication. An image marked in the offline data with “model release: YES” means that the individual presented on the image as central motif has signed a statement to the effect that reproduction of the image with the illustrated individual is permitted subject to the limitations defined in these Agreement. An image marked in the offline data with “property release: YES” means that the owner of the property presented on the image as central motif has signed a statement to the effect that reproduction of the image with the illustrated property is permitted subject to the limitations defined in these Agreement. A Licensee intending to use merely a section of the images must obtain a prior written confirmation of release status for the section from Westend61 or Westend61’s resell agent.
8. Westend61 shall not represent any rights and make any warranties regarding the use of names, individuals, trademarks, trade dresses as well as non-registered or non-copyrighted designs, works of art or buildings illustrated on the images. If the Licensee is not sure as to whether an additional licence must be obtained prior to use, the Licensee shall be responsible for obtaining legal advice from a competent expert.
9. This Agreement terminates automatically upon failure by the Licensee to comply with its terms.
Limited Warranty
1. Westend61 warrants for a period of 60 days from delivery that the Images are free from defects in material and workmanship. Your sole and exclusive remedy for a breach of this warranty is the replacement of the Images or a refund of the purchase price, at the option of Westend61.
2. Westend61 makes no other warranty nor agrees any other condition, representation or undertaking, either express or implied, of any nature, including as to merchantability, satisfactory quality, fitness for any particular use or compatibility with any computer or other kind of equipment. Neither Westend61 nor any of its agents or employees shall be liable to any distributor or other reseller, Licensee, end user or other person or any indirect, incidental, special or consequential damages (including loss of profit, business, revenue, goodwill or anticipated savings) resulting from its performance or non-performance of this Agreement or the use of, or inability to use the Images provided under this Agreement or arising (or which might be claimed) under any other cause of action or theory of claim.
Fees, Charges and Costs
1. Use of the images shall be subject to payment of a fee. This shall also apply, though not ultimately, to the usage of an image as a model for drawings, caricatures and images with a similar motif, use for layout purposes and Licensee presentations as well as use of image details which become part of a new image by means of photomontage, photo composing or similar techniques.
2. Fees must be agreed before use. They shall be based on the medium, nature and scope of use. If the Licensee fails to inquire for the fee prior to use and if no fee has been agreed upon in any other way, Westend61 or Westend61’s resell agent shall automatically charge the Licensee according to the agency’s fee schedule, as applicable. If the ordering party fails to make any exact statements, the agency shall be entitled to charge the party a lump sum. Any fees stated in offers, price lists and other documents are always net without value-added tax and other duties.
3. As soon as the Licensee has declared that he is intending to use the images supplied in whole or in part, Westend61 or Westend61’s resell agent shall be entitled to invoice the Licensee for the awarding of rights of use even if publication or other use has not yet taken place.
4. Image data/ scans specifically made on behalf of a Licensee which have been transmitted shall be invoiced separately.
5. Fees must always be paid subject to statement of Licensee and image numbers. Without these statements, Westend61 or Westend61’s resell agent will have to charge the Licensee an additional expense depending on the scope of additional efforts. The statement must also indicate in detail which image was used in which publication on which position.
6. Invoices shall be payable within thirty (30) days of the date of the invoice. After this period has lapsed, the Licensee shall be considered to be in arrears with payment. For the duration of default, the Licensee shall be required to pay interest totalling the base rate plus 5% on top of the amount outstanding.
7. A fee of 50% of the invoice amount shall be charged for cancellation within fourteen (14) days of the invoice, the full invoice amount shall be charged for cancellation after 14 days of the invoice.
Contractual Penalty, Claims for Damages
1. If the images are used, distorted or passed on without authorisation, if reprinting rights are passed on to third parties without authorisation, if reproductions and enlargements are made for the ordering party’s archiving purposes and the same are passed on to third parties, a fee totalling twice the usual usage fee shall be charged subject to the assertion of claims for damages.
2. By paying damages, the Client shall neither obtain property rights or rights of use concerning the images.
3. In case of downloads or other operations with Westend61’s or Westend61’s resell agent’s online data base, the Licensee shall bear the full risk. Westend61 shall under no circumstances become liable for damages concerning any damage which may be caused to the Licensee’s software or hardware.
4. If the Licensee makes use of the images in any way not covered by these Agreement including the use of an Image without appropriate model releases or property releases, the Licensee shall indemnify Westend61 and its executives and staff and resell agents against any claims for damages, liabilities and costs which may arise from actual or threatened civil procedures, actions or court proceedings concerning use of the images by the Licensee and hold them harmless to the extent the essence of the actions concerned is the fact that a release was not granted or that the Licensee used the images without authorisation.
Copyright
1. The Images are copyright © Westend61 and/or its licensors. The Images are protected by German Copyright laws, international treaty provisions and other applicable laws. No title or intellectual property rights in the Images are transferred to the Licensee.
2. The Licensee shall ensure that all copies of the Images published and distributed by the Licensee shall contain full notice that the copyright is retained by Westend61
General Provisions
1. This Agreement shall be governed by German law.
2. The court of Munich has the exclusive jurisdiction over all disputes arising out of or relating to this Agreement. The foregoing shall not affect Westend61’s right to seek injunctive relief before any other court.
3. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Should any provision of this Agreement be or become invalid or unenforceable in whole or in part or should there prove to be an omission herein, this shall not effect the validity of the remaining provisions. In place of the invalid or unenforceable provision that valid and enforceable provision shall be deemed agreed which comes closest to meeting the purpose of the invalid or unenforceable provision. In the event of an omission, that provision shall be deemed agreed which corresponds to what would have been agreed, on the basis of the spirit and purpose of this Agreement, had the parties given the matter their attention at the outset.
Westend61 Rights Managed Licence Agreement
office@westend61.de
www.westend61.de