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Licencia de usuario finalCesión de derechos de autorCondiciones de uso Política de privacidad

 
 

Contrato de cesión de derechos de autor  

en vigor a partir de 15.4.2016

1. Preamble

1.1 The present Agreement stipulates the conditions under which photographers, illustrators and other artists (hereinafter referred to as "authors") make their contents - for example photographs, illustrations, drawings, moving image formats (hereinafter referred to as "Contents") - available to PantherMedia GmbH (hereinafter referred to as "PantherMedia"). In particular, provisions are formulated for the transfer of the rights of use from the authors to PantherMedia.

1.2 Customers and authors are collectively referred to as "members".

1.3 The Author Licence Agreement applies in addition to the Terms and Conditions of Use which apply to the website and which have been entered into by all members. In the event of inconsistencies between the Author Licence Agreement and the Terms and Conditions of Use, the provisions of the present Author Licence Agreement shall apply.

2. Transfer of Rights

2.1 The author transfers to PantherMedia all non-exclusive transferable rights of use, unrestricted as to content, time and place, with respect to the uploaded Contents.

2.2 The transfer is made in order to grant third parties rights in accordance with the End User Licence Agreement to use the Contents for the purposes described below and to transfer rights of use, wholly or in part, to other picture agencies or distribution partners (hereinafter collectively referred to as "partners") for the purpose of marketing. Moreover, PantherMedia may transfer the rights of use granted to a third-party enterprise (such as a foreign company or an affiliated enterprise) wholly or in part.

2.3 PantherMedia may also transfer its rights and obligations under this contract to a third-party enterprise such as a foreign company or an affiliated enterprise (take-over of the contract). In the event the contract is taken over, authors have the right to terminate the contract effective as of the time the contract is taken over.

2.4 The author agrees that all licences for the Contents he makes available may be granted without stating his name (i.e. anonymously). The author expressly waives his right to be named as author.

2.5 PantherMedia is not required to exploit the rights transferred.

2.6 The transfer of the rights of use covers all types of use including digitalising, reproducing, distributing, exhibiting, presenting, transmitting, providing public access and public communication by vision, sound and data carriers as well as the right of commercial exploitation of the Contents by manufacturing and distributing goods of all kinds (for example posters, calendars, dolls, games, toys, stuffed animals, sporting articles, household, bathroom and kitchen goods, clothing articles, print matters including comics, sound carriers, headgear, buttons, etc.),in particular interactive and multimedia products (such as computer games). The Contents may be used both by digital and analogue means in all media suited for this (for example online use of any kind, Social Media, any kind of print use, TV, cinema, theatre, videogrammes (CD, DVD, etc.),interactive and multimedia use, etc.) and may be stored in databases, also if they are accessible online.
Moreover, the transfer includes:
(a) the right of processing, meaning the right to process or alter the Contents (for example by montages, photo technical manipulation, colouring) by using analogue, digital or other image processing methods, while observing the author's personal rights;
(b) the right to use the Contents within the scope of the PantherMedia website, blog and the PantherMedia teaching material. Authors will receive no remuneration for this kind of utilization;
(c) the right to use the Contents uploaded in the photo agency free of charge for self-advertising in any media; the partners of PantherMedia shall also be entitled to such right to the Contents for their self-advertising, in particular advertising for such cooperation. Authors will receive no remuneration for this kind of utilization.

3. Special Projects & Rights Managed Licences

Within the scope of special projects or rights managed licences, individual licence agreements can be entered into by PantherMedia and customers. The right of use granted and remuneration depend on the use of the Contents for specific purposes (such as printing an image on a canvas) and are subject to the individual licence agreement between PantherMedia and the rights managed customer. The author hereby agrees that PantherMedia is entitled to negotiate the individual licence terms and conditions and agrees to the so agreed terms and conditions. 

4. Free Contents

4.1 PantherMedia offers a "cost-free Contents programme". By confirming the check box "Provide this content free of charge", the author agrees that PantherMedia may make this content available to customers free of charge within the scope of the "cost-free Contents programme".

4.2 This option may be deactivated at any time effective as per the next day.

4.3 PantherMedia is thus entitled but not obligated to provide selected Contents in a special section of the website, limited in terms of time, as cost-free Content.

4.4 The author waives remuneration for the transfer of the rights of use to customers within the scope of the "cost-free Contents programme". PantherMedia will not pay out credit balances for cost-free Contents. In all other respects, the provisions of the Author Licence Agreement shall also apply to these Contents.

5. Representations

5.1 By uploading Contents, the author represents that he is entitled to grant all rights of use to be granted under this Agreement and that he has not yet granted rights to use Contents which could be in contradiction to the present Agreement.

5.2 The author also represents and warrants that the Contents with respect to which he transfers the rights of use to PantherMedia do not infringe any copyrights, trademark rights, the right to privacy, publicity rights or other third party rights, or insult third parties or bring third parties into disrepute.

5.3 Model Release: To the extent the Contents include images of persons or groups of persons, the author guarantees that he has obtained from all recognizable persons a valid and legally binding declaration of release with respect to the use of the image, essentially corresponding to the declaration filed under the online address and by which the use of the Contents as described in the End User Licence Agreement is permitted.

5.4 Property Release: To the extent the uploaded Contents include depictions of the property of others, the author guarantees that he has obtained - if legally required - a valid and legally binding declaration of release from each person entitled with respect to the depiction of such property. This declaration of release must essentially correspond to the declaration filed under the online address and must permit the use of the Contents as described in the Customer Licence Agreement.

5.5 Furthermore, the author guarantees:
(a) that the information describing the content and furnished to PantherMedia in accordance with the present Agreement does not infringe copyrights, trademark rights, the right to privacy, publicity rights or other third party rights, or insult third parties or bring them into disrepute;
(b) that the Contents supplied to PantherMedia do not contain blocking mechanisms or protective devices intended to prevent Contents being used, copied or utilized in the form provided for in the present Agreement;
(c) that the Contents include all necessary descriptive information required for effective marketing of the Contents on the website, that the descriptive information is complete and correct in all essential points and does not contain inaccurate, misleading or non-functioning meta data which have or are meant to have the effect of "keyword spamming" or which incorrectly alter search results which otherwise are given for such Contents.

5.6 During the term of the contract with PantherMedia, authors are forbidden to do business with customers of PantherMedia for their own account or for the account of third parties. In the event of non-compliance, PantherMedia reserves the right to demand damages or the restitution of the proceeds earned by the transaction.

6. Renumeration

6.1 The prices in force are the respective current prices for licenses and products (subscriptions, image packs, credits, images on demand, etc.) as shown on the website of PantherMedia or its partners. This does not apply for special project licenses and rights managed licences (in accordance with Section 3 respectively); the prices of prices of which are agreed between customers and PantherMedia individually. The price list for royalty free content may be altered after prior notification and at the discretion of PantherMedia. Changes will be announced in time on the website and become valid two weeks later. If prices change to the detriment of the author (price reduction of the Contents),the author may terminate the Contents upon two weeks' notice. However, PantherMedia and its partners are entitled to utilize the Contents with the old prices for a period of three months after expiry of such period of notice.

6.2 PantherMedia agrees to share with the author the receipts earned by PantherMedia's granting of licences to customers in accordance with a key fixed for this purpose.

6.3 For providing the Contents, the author receives from each payable licence fee or fees generated by the Contents (fee in accordance with the price list less possible discounts or other special conditions) a share of the net sales:
The share is specified in the Royalty Chart.

6.4 Net sales are
(a) the remuneration paid by the customers less
- discounts granted to customers
- taxes payable or other deduction payments payable in accordance with the law in force,
- lawyers' fees and other reasonable fees incurred in the enforcement of the present Agreement or the Customer Licence Agreement,
- the fees charged by a financial institution for the transactions (PayPal, Firstgate, others),
- as well as other third party costs connected with the transaction;
(b) the remuneration paid to PantherMedia for utilization of the Contents by partners (= less partner commission).
(c) other fees listed in the Royalty Chart.

6.5 The costs for advertising commissions (for example affiliate programme, gift campaign) will always be born by PantherMedia alone.

6.6 The remuneration is due and payable upon PantherMedia's receipt of the payment for the licence from the customer. If sales are made through the distribution partner, payment is usually effected on a monthly basis or at least quarterly. Exceptions are shown in the partner overview.

6.7 The request for payment of the credit balance must be directed to PantherMedia. For doing so, "payment" must be clicked in the personal section, thus requesting payment of the credit balance. The share of the receipts for the Contents purchased will be transferred at the beginning of the month following the request if the credit balance has reached a minimum amount of EUR 30; if the amount is below EUR 30, the credit balance cannot be requested until the credit balance exceeds this minimum amount. Amounts below the minimum sum may be paid out quarterly against a processing fee of EUR 5. Should the credit balance be transferred to an account abroad, the author must pay the costs incurred. The fees for payment providers such as PayPal or Firstgate will be borne by PantherMedia.

6.8 PantherMedia will offer licences in several currencies. These are shown in the price list. Since all credit balances with PantherMedia are kept in euros, conversion is required. The rate of conversion for the Contents which are paid in foreign currencies and which is decisive for calculating the author's remuneration is fixed each quarter and is based on the average value for the last 90 days. The relevant conversion rate is always the one of the day on which payment is received.
Example: An image costs USD 60. The date on which the order is placed is 20th March. Payment is received on 10th April. This means that the conversion rate of the second quarter applies to the conversion of the USD 60 into euros.

6.9 PantherMedia is entitled to demand already paid out credit balances back retroactively if the Contents are cancelled later or if the transaction is invalid (for example credit card return debit).

7. Term of Contract

7.1 The contract between PantherMedia and the author is concluded for an indefinite period of time. Both parties may terminate the contract with respect to the entire Contents or with respect to individual Contents upon a six months' notice per the end of the respective month.

7.2 PantherMedia may terminate the contractual relationship by sending an e-mail or by written notification to the address last entered in the author's contact data.

7.3 The right to terminate without prior notice shall be unaffected thereby.

7.4 Upon termination of the present Agreement, also the Terms and Conditions of Use shall be deemed terminated.

7.5 PantherMedia is entitled to continue to license the Contents until termination of the contract. PantherMedia will continue to pay the share of the licence fee. If a credit balance remains at the end of a quarter, this will be transferred at the end of the quarter.

7.6 If the author wishes to have only individual Contents removed from the database, he may do so himself in his personal section. PantherMedia will delete the Contents from the database within a maximum period of three months without charging a fee. In addition, PantherMedia will send the partners in the next update cycle (per quarter at the latest) a notice concerning the deletion. The partners will delete the Contents from the database within a maximum period of three months after receipt of such notice. If the Contents must be removed as soon as possible, for example for legal reasons, PantherMedia should be promptly informed in writing (fax will suffice).

7.7. PantherMedia shall remove all Contents by the author by the end date of the contractual relationship. From the end date of the contractual relationship onwards no usage rights will be granted to third parties with the exception of 7.8.

7.8 Exceptions from the deletion and licencing of Contents:
(a) The thumbs for the Contents will not be deleted but remain on the servers of PantherMedia in a separate area.
(b) Contents which have been licensed to customers will not be deleted but deactivated. The related data will be kept for administrative and tax-law purposes and for purposes of liability for defects but can no longer be viewed in the public area.
(c) Contents which are being used in the context of streaming offers shall remain on the servers of PantherMedia for a period of 24 months beyond the end of the contractual relationship and will continue to be displayed on customer pages during this 24 month period. Further licensing of such Content to clients shall not be possible. The payment of any royalties due to the author from this period can be requested in writing after the end of the 24 month period. At the end of the 24 month period the author grants PantherMedia the following right:  At the end of the 24 month period PantherMedia has the option for a two week period to purchase at the fee of a single standard subscription download per streaming use a license to enable the continued provision of the streaming service. The exercise of this right hast be made in text form within the aforementioned 2 week period. To meet the 2 week deadline PantherMedia’s communication must have been delivered to the author by the last day of the two week period. With this license fee all claims shall be satisfied. These images remain on the servers of PantherMedia and will continue to be displayed on customer pages with a time limit. 

7.9 Rights of use already transferred to customers shall remain in force.

8. Inspection of the Contents, Liability

8.1 PantherMedia has the right but not the obligation to perform an editorial examination of uploaded Contents. Under certain circumstances, PantherMedia will modify keywords entered by the author. PantherMedia reserves the right to reject individual Contents without stating the reasons or to delete Contents already included from the database at any time. It is expressly pointed out that due to the magnitude of Contents entered PantherMedia is unable to check all Contents. The authors assume exclusive responsibility for the lawfulness of the Contents and for the entitlement to pass on rights of use with respect to the Contents. Any liability of PantherMedia in this respect is expressly excluded.

8.2 If PantherMedia is held liable by third parties due to culpable violations of the author's duties, in particular with respect to infringements of copyrights, personal rights, ownership rights or industrial property rights, the author will indemnify PantherMedia against any liability and all costs, including any costs of proceedings.

8.3 The same applies if a customer is held liable by third parties for culpable violations of the author's duties.

8.4 In particular, PantherMedia assumes no liability arising from customers' utilization of the posted Contents in violation of the contract.

8.5 Should authors or third parties see their own or third-party rights violated, they must inform PantherMedia promptly in writing. PantherMedia will then promptly delete the Contents concerned from the database.

8.6 PantherMedia's liability and the liability of its vicarious agents for the breach of contractual duties and for tort are restricted to intent and gross negligence. This shall not apply in the event of any damage to life, body and health, claims due to a violation of cardinal obligations and compensation for damage caused by default (Section 286 of the German Civil Code). In this respect, PantherMedia is liable for each degree of its fault or the fault of its vicarious agents.

8.7 Liability for the violation of cardinal obligations shall be limited to foreseeable, typically occurring damage.

9. Final Provisions

9.1 Munich shall be the exclusive place of jurisdiction for customers who are businessmen, legal entities under public law or special funds under public law

9.2 This contract of use is subject exclusively to the substantive law of the Federal Republic of Germany, excluding the provisions of conflict of laws and UN sales law.

9.3 Should individual clauses be invalid, this shall not affect the validity of the remaining clauses.

 
 

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