1. The purpose of the order is the creation of and permission to use pieces of imagery (hereafter "Imagery") and the granting of licenses to use the Imagery for the intended purpose as contractually agreed upon.
2. Orders to be carried out by BRANSCH EUROPE GmbH & Co. KG (hereafter "BRANSCH EUROPE") will only be executed in accordance with these General Terms and Conditions; the client (hereafter "Client") agrees to these General Terms and Conditions with regard to the relevant order as well as all additional and future business transactions with BRANSCH EUROPE. The Client's general terms and conditions will apply only if BRANSCH EUROPE has expressly agreed to them in writing.
3. The agreement only covers what is included in the order confirmation and what was decided upon when the order was placed. Any additional costs incurred due to additions to the original scope of the order will be invoiced accordingly. Any incidental costs (including, but not limited to, materials, props, models, travel, etc.) shall be covered by the Client. All professional fees and other charges invoiced by BRANSCH EUROPE are subject to value-added tax at the rate that is valid at the time of invoicing. Furthermore, the Client shall pay to BRANSCH EUROPE the charge levied by the German social security service for artists, which BRANSCH EUROPE may be subject to for third-party services.
4. BRANSCH EUROPE reserves the right to mark up quoted total costs by up to ten (10) percent and change the allocation of costs within the quote provided. Cost overruns must be reported by BRANSCH EUROPE only if the overrun is or will likely be more than ten (10) percent above the total amount originally quoted. Quotes shall be in euros. If, at the Client's request, BRANSCH EUROPE provides a quote in a different currency, the exchange rate in euros valid on the date of the quote shall apply. The Client under-takes to reimburse BRANSCH EUROPE for all third-party costs quoted before production commences. If the Client fails to reimburse in time, BRANSCH EUROPE will not be obligated to carry out the order. All invoices are due and payable immediately upon receipt.
6. 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 the Client, and all rights to this digital data shall not be granted to the Client, but shall remain exclusively with the artist/author.
7. All rights to be transferred to the Client in accordance with the agreement will remain with BRANSCH EUROPE until payment has been received in full. Only after full payment of all professional fees agreed upon will the Client be entitled to take advantage of all usage rights within the scope of the agreement and may transfer them to any third party stated in the agreement without BRANSCH EUROPE's consent. The contractually agreed upon claims for payment in the full amount shall not be affected by the reservation of rights defined in this clause. The Client is not entitled to relinquish or transfer any of his or her claims or rights against BRANSCH EUROPE to any third party.
8. If the Client commissions BRANSCH EUROPE to implement a layout with which it was provided and, based on the implementation of the layout, damages are claimed or any other claims are made against BRANSCH EUROPE or any artists acting on behalf of BRANSCH EUROPE, the Client shall release BRANSCH EUROPE and the artists from any claims made by third parties and undertake to bear all costs related to appropriate legal action.
9. The Client is responsible for obtaining all licenses, permits, forms of authorization and approval, including obtaining relevant usage rights and authorizations, in connection with the production. Original copies of the relevant releases and transferals of rights shall be included with the final invoice or final invoice package.
10. If BRANSCH EUROPE provides the Client with Imagery from its archives, the Client will have fourteen (14) days from the day stated on the bill of delivery for review and selection. If the parties do not enter into a license agreement within the period stated above, all Imagery and media provided shall be returned immediately, and all image data stored by the Client shall be deleted. Granting the right to review and make a selection does not constitute a transferal of any usage rights. If the Imagery provided is used for layout purposes or in any other way as a work template, including, but not limited to, for presentations with customers, this usage is subject to compensation.
11. The author of the Imagery and BRANSCH EUROPE are entitled to be mentioned when the Imagery is used. Furthermore, BRANSCH EUROPE and the artists/authors commissioned by BRANSCH EUROPE to produce the Imagery are entitled to use the Imagery they produced to promote their own businesses.
12. Unless otherwise included in the usage rights set forth in the agreement, any form of reproduction, distribution, publication, modification, editing, making publicly available, transformation for the purpose of reproduction for other media, etc. is subject to BRANSCH EUROPE's express written consent. In particular, the Client is not entitled to scan the Imagery and/or digitally store, edit, manipulate or reproduce all or parts of it, use it to create new digital images or transfer it to other devices for media or images.
13. Apart from possible claims for damages, unauthorized use, distribution or any other use not agreed upon will result in a minimum of five (5) times the amount of the usage fees agreed upon.
14. The Client assumes the risk of accidental loss or damage as soon as the materials to be delivered are handed over to the person in charge of transportation. This also applies if BRANSCH EUROPE handles transportation itself. BRANSCH EUROPE will purchase transportation insurance only at the Client's express request and at the Client's expense.
15. All proprietary rights to original Imagery will remain with BRANSCH EUROPE. BRANSCH EUROPE is not required to archive Imagery it produced or media on which Imagery is stored.
16. The Client must return original Imagery provided to him or her immediately after use to BRANSCH EUROPE at the Client's own risk and expense. If the Client fails to return the originals even after he or she has received a written reminder, or if the originals become lost for reasons which BRANSCH EUROPE cannot be held accountable, BRANSCH EUROPE is entitled to compensation. This compensation will be 2,000 euros or twice the professional fee agreed upon for each original piece of Imagery, whichever is greater.
17. The Client must file any complaints in writing and immediately upon receipt of materials. As for patent defects, the Imagery shall be considered accepted without defects and in accordance with the agreement after a period of three (3) working days. Any damages that may be claimed by the Client from BRANSCH EUROPE are subject to a limitation of one (1) year except in cases of intent. The period of limitation commences upon delivery of the Imagery.
18. Damages may be claimed against BRANSCH EUROPE only in cases of gross negligence and willful intent. BRANSCH EUROPE is not liable for costs incurred with regard to models, travel, etc. Enforcement of a claim for indirect damage shall be excluded. If Imagery becomes lost while with BRANSCH EUROPE for reasons which BRANSCH EUROPE cannot be held accountable, the loss will not affect its claim to remuneration.
19. BRANSCH EUROPE is entitled to receive cancellation fees equivalent to 100% of professional fees agreed upon if the order cannot be executed for reasons which BRANSCH EUROPE cannot be held accountable. If an order has been initiated but is not completed for reasons which BRANSCH EUROPE cannot be held accountable, BRANSCH EUROPE will be entitled to the full amount of professional fees. An order is considered as initiated once BRANSCH EUROPE begins rendering the service as set forth in the agreement. If the time required to execute the order is exceeded or if the execution of the order is delayed or repeated for reasons which BRANSCH EUROPE is not responsible—e. g. due to last-minute changes to the original briefing, inclement weather, late delivery of products, mistakes at the photo laboratory, non-appearance of models, loss of luggage, etc.—, the professional fee will increase in relation to the fees agreed upon for the initial scope of service. In this case, incidental expenses will increase according to the actual costs incurred.
20. Claims against BRANSCH EUROPE for damages are limited to the amount of professional fees agreed upon. Both parties to the agreement reserve the right to prove that the damage is higher or lower or that no damage has occurred at all. By providing payment for damages or other costs and charges incurred, the Client acquires no property or usage rights to the Imagery.
21. Any failure to mention the author of the Imagery or BRANSCH EUROPE may result in a 100% surcharge on the agreed upon professional fees.
22. The right to publish Imagery featuring individuals will not be transferred to the Client until after the individuals depicted have provided their express written consent.
23. The Client or an individual authorized by the Client is required to be on site during a shoot and to provide his or her approval of creative concepts expressed by the artist commissioned by BRANSCH EUROPE. If neither the Client nor an individual authorized by the Client is on site during a shoot, the Client will not be permitted to reject the creative execution of services at a later time. In such a case, each new variation of the Imagery produced must be paid for separately.
24. The Client is required to procure insurance against damage, loss, theft, etc. for objects provided to BRANSCH EUROPE in order to execute the order; BRANSCH EUROPE cannot assume liability for any such incidents.
25. Modifications, supplements or amendments to these General Terms and Conditions must be in writing. If a provision of the agreement or these General Terms and Conditions becomes ineffective, the remaining provisions of the agreement and these General Terms and Conditions will remain in full force and effect. If any provision is deemed invalid or void, this will not mean that the entire agreement or all of these General Terms and Conditions are void. In the event that any provisions are deemed invalid or void, the parties to the agreement shall agree to replace or reinterpret such invalid or void provisions with provisions that most closely fulfill the intent and purpose as well as the desired business objective of the provisions permitted under the agreement and these General Terms and Conditions. This also applies in the event that it is necessary to close any loopholes that might arise in the agreement or these General Terms and Conditions. The place of performance and the place of jurisdiction for both parties to the agreement is the place of business of BRANSCH EUROPE, unless otherwise required by law. The agreement and these General Terms and Conditions are governed by the laws of the Federal Republic of Germany. Any services rendered outside of the Federal Republic of Germany are also governed by German law. The terms and conditions of the United Nations Convention on Contracts for the International Sale of Goods signed on April 11, 1980 in Vienna, Austria do not apply.
Note: The German language version of these General Terms and Conditions shall be the version used in the event any dispute arises hereunder. The English translation of these General Terms and Conditions is for convenience only and shall not be used by the parties or any court when interpreting or construing these General Terms and Conditions.