Submission and/or release of images (“Images”) by BRANSCH INC. (“we” or “us”) for examination or use is conditioned upon the party seeking the right to use the Images (“you”) agreeing to all the terms contained herein:
Rights in Images
Unless otherwise specifically stated, all Images remain our property or the property of the particular photographer. For any license granted by us, we represent that we have the right to grant the license on behalf of the photographer. Upon submission of and payment of an invoice to us, a license shall only be granted to use the applicable Images for the use specified on the invoice and for no other purpose. You do and shall not acquire any right, title or interest in or to any Image, including, without limitation, any electronic reproduction or promotional rights, and you will not make, authorize or permit any use of any Image(s), plate(s) or digital files made therefrom other than as specified herein.
Digital data used to create the final Imagery, such as 3D data or texture maps of the particular objects and sets, shall not be made available to you, and all rights to this digital data shall not be granted to you, but shall remain exclusively with the artist/author.
If you desire to re-use an image or extend previous usage other than as set forth in an invoice, then you must request and pay for additional rights prior to any such use. You agree not to make, authorize or permit any use of an image or its derivative (e.g., use of an Image as a source to create another image) except as authorized by the invoice. In the event you use an Image for any use other than that indicated on the invoice, including, but not limited to, the number of uses, the permitted media or publications, or the size of the reproduction, you agree to pay us, as liquidated damages, a sum equal to ten (10) times our standard rate for such use, within ten (10) days following the invoice date. You agree that this is not a penalty, but a reasonable assessment of actual damages and a fair use charge. If you fail to make such payment in ten (10) days, we retain all rights and remedies, at law or in equity.
You agree that no model releases or other releases regarding the subject matter or other elements of the Images exist unless we specify the existence of such releases in the invoice, and you shall be solely responsible for obtaining all releases from all third parties in connection with your use of the Images.
All rights not specifically granted to you are reserved for our use and disposition without any limitations whatsoever.
Cancellation of Licenses
You acknowledge that rights are being reserved for your use when we issue an invoice. If you wish to cancel an order, you can do this a maximum of 3 days after the images are delivered and accepted for a cancellationfee of 50%. After 3 days, you will be charged 100% of the original usage fee.
Cancellation of Photography Shoots
If a photography shoot is assigned to us and a confirmation issued by us is signed by you, or is sent by us to you via mail or electronic mail and is not objected to within 3 days, the assignment is confirmed. A confirmed photography assignment can be cancelled on the following conditions: (a) if cancelled up to 10 days prior to the production, you agree to pay 50% of the working fee (including the confirmed prep and post days), 50% of the usage fee, and 100% of the already spent production expenses; and (b) if cancelled on 10 or fewer days prior to the production, you agree to pay 100% of the working fee (including the confirmed prep and post days), 50% of the usage fee, and 100% of the already spent production expenses.
Payment herein is to be net thirty (30) days. A service charge of two percent (2%) per month (or the maximum amount permitted by law, if less) on any unpaid balance will be charged thereafter. Any invoice not disputed within ten (10) days after receipt will be deemed accepted and not subject to objection or challenge.
Images used editorially should bear a credit line in the form "[name of photographer or creator of the Image] /BRANSCH INC." and a copyright notice designated by us in the invoice and/or confirmation. We reserve the right to charge a treble fee for use without a credit.
Disclaimer of Warranty
Digital files are provided “as is.” We make no representation or warranty, either express or implied, including, but not limited to, any implied warranties of merchantability, fitness for any particular purpose, non-infringement, quality of image, or compatibility with any computer hardware or other equipment, operating system or software program.
Without limiting the foregoing, except with respect to any releases specified in an invoice as set forth above, we make no representation or warranty, either express or implied, with respect to the use of any persons, places, names, trademarks, service marks, logo types, registered or copyrighted designs or works of art depicted in any image, and you shall be responsible for securing all necessary rights, consents or permissions as may be required for reproduction your use of the Images.
You agree to indemnify us, our parent, subsidiary and affiliated entities, and our and their respective officers, directors, shareholders, agents and assigns, from and against all claims, losses, actions, damages, costs and expenses (including reasonable attorneys’ fees) arising out of your breach of this Agreement or any use of any Images, including any claims of libel, slander, defamation, violation of rights of privacy or publicity, or copyright or trademark rights.
Limitation of liability
In any event, the limit of liability of BRANSCH INC. shall be the sum paid to it per the invoice for the use of the particular image involved.
Under no circumstances will we or the owner of any Images be liable for any incidental, consequential, indirect or punitive damages as a result of the use of the Images. In any event, the limit of liability of us and the copyright owner of the Images and shall be the total amount of the fees paid in connection with the applicable Image.
Disputes or claims arising out of submission and/or use
Any and all disputes, with the exception of copyright claims, arising out of, under or in connection with this agreement, including, without limitation, the validity, interpretation, performance and breach hereof, shall be settled by arbitration in New York, New York, pursuant to the rules of the American Arbitration Association. Judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction. Notwithstanding the foregoing, any claims under copyright may be brought in any Federal court having jurisdiction. This agreement, its validity and effect, shall be interpreted under and governed by the laws of the State of New York. You waive any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum.
You agree to provide us with two (2) free copies of all materials in which the Images are used immediately upon printing.
You agree that the above terms are made pursuant to Article 2 of the UNIFORM COMMERCIAL CODE and agree to be bound by same. Objection to any terms must be made in writing within ten (10) days.
You may not assign or transfer this agreement or any rights or obligations hereunder.
This agreement (together with any invoices and confirmations) contains all the terms of the agreement between you and us concerning delivery, review and licensing of Images, and no terms and conditions may be added or deleted unless made in writing and signed by both you and us. These terms and the terms of any subsequent invoice supersede any and all terms of any purchase order. Any subsequent invoice we may issue may contain additional terms relating to the rights granted and the type of use allowed. No rights are granted until payment is made to us even though you have received an invoice.
If we are required to incur any cost as a result of any breach of the above terms set forth, you agree to reimburse us for such cost, including reasonable legal fees or costs.
If desired, you may elect to have shoot expenses administered by us. If you make such election, the following terms shall apply:
You shall advance to us, in one or more lump sum payments, the funds necessary to cover all expenses specified in the estimate, and we shall disburse such funds to pay each such expense as it becomes due. We shall be authorized to pay all expenses in the approved Estimate without your specific approval, but shall obtain such approval before paying any expense not specified in the agreed estimate. We shall not be required to pay any expense unless and until you provide the necessary funds, and shall have no personal responsibility or liability for any cost or expense, other than to disburse the funds provided by you, pursuant to the agreed estimate.
You agree to indemnify us, our parent, subsidiary and affiliated entities, and our and their respective officers, directors, shareholders, agents and assigns, from and against all claims, losses, actions, damages, costs and expenses (including reasonable attorneys’ fees) arising in connection with any claim asserted by any vendor or supplier as the result of the your failure to provide required funds. We shall provide you with receipts (or other acceptable written substantiation) for all disbursements made by us on your behalf.