§ 1 Scope of applicability
1. These Usage Terms and Conditions regulate exclusively the usage of the Internet offerings operated by BRANSCH EUROPE GmbH & Co. KG at www.bransch.net including all subpages (hereafter, “Web Site”) as well as the services and content offered in this context. However, they do not regulate the further business relationships which you have possibly entered into in the past outside of the web site or will enter into in the future with BRANSCH EUROPE GmbH & Co. KG or BRANSCH Inc.
2. Through the use of the web site, particularly through the downloading of content and/or registration upon the Web Site, you are accepting the validity of these Usage Terms and Conditions. Do not use this Web Site if you do not agree with the validity of these Usage Terms and Conditions. If you use General Terms and Conditions which deviate from these Usage Terms and Conditions herein, these General Terms and Conditions shall not be acknowledged under any circumstances.
3. The use of the Web Site is not permitted to minors and other persons not able to undertake business transactions or who are only able to do so in a limited capacity. Thus, do not use this Web Site if you are not fully able to undertake business transactions.
§ 2 Rights to content
1. All content of the web site, particularly the photographs, computer-generated images (CGI), illustrations and graphics of the artists presented (hereafter: “Works”) are protected by law. Any use of the Works which extends beyond the usage described in § 3 of these Usage Terms and Conditions is permitted only after having obtained the prior express consent of the owner of the rights (see § 3 Clause 4).
2. You assure that you will respect the rights to the Works and use them only in accordance with § 3 of these Usage Terms and Conditions and also expressly declare that, in the event of unauthorised use, you agree to pay a contractual penalty (see § 4).
§ 3 Permitted usage
1. Upon the Web Site, you will be offered the option to send and/or download the Works in a resolution of 72 dpi via the functionalities “Lightbox” and “Download Portfolio” as well as via the general download function on your computer. In this respect, the offerings linked to the functionality “Lightbox” are intended exclusively to the users registered upon the Web Site.
2. If the download of Works is made as described in the preceding clause, then BRANSCH EUROPE GmbH & Co. KG as legal agent of the respective author/artist of the Works, shall grant to you the non-exclusive right to a one-time download as well as a saving for a timeframe of 10 days for purposes of reviewing and deciding about whether to place an order to the respective artist or to acquire a license. Nonetheless any further reproduction, dissemination, making publicly accessible, processing (including any imitation) or other use of the Works is not permitted. The aforementioned shall also apply explicitly for the usage of the Works for presentations or layout purposes with respect to third-parties.
3. The granting of rights in accordance with Clause 2 of § 3 expressly includes only the rights of use following copyright law of photographers or illustrators, but not any other possible property or other rights, e.g. the rights of persons portrayed, the rights to artistic works depicted or the rights to protected logos depicted.
4. You yourself, as the user of the Works, are responsible for the clarification of all rights which are not expressly granted to you in Clause 2 of § 3, particularly also the property and other rights defined in Clause 3 of § 3. BRANSCH EUROPE GmbH & Co. KG provides no guarantees or warranties in this regard whatsoever.
5. If you would like to commission one of the artists presented or use Works beyond the scope of use described in Clause 2 of § 3, please contact the person listed on the Web Site for the respective Work. The contacted person will be glad to provide you with information, to discuss with you the awarding of jobs to artists and conduct any related negotiations in this respect or to inform you of the rights available to the respective Works and to negotiate any corresponding licenses.
§ 4 Unauthorised usage
1. If you reproduce, disseminate, make publicly accessible, process or otherwise use the Works in an unauthorised fashion, i.e. beyond the scope of use specified in § 3 Clause 2, you shall be obliged to pay to the respective artist a contractual penalty of five times the customary usage fee. In the absence of such a customary usage fee, you shall be obliged to pay five times the fee prescribed for the respective use in the fee recommendations of the German Association “Mittelstandsgemeinschaft Foto-Marketing”.
2. In the event that you, during the course of your authorised or unauthorised use of the Works, violate the artist’s right to be named, you shall be obliged to pay to the respective artist a contractual penalty in the amount of 100 % of the customary usage fee. In the absence of such a customary usage fee, you shall be obliged to pay 100 % of the fee prescribed for the respective use in the fee recommendations of the German Association “Mittelstandsgemeinschaft Foto-Marketing”.
3. The right of asserting more extensive damage compensation claims in accordance with the statutory provisions shall remain unaffected by the provisions of the aforementioned clauses.
4. By means of the payment of damage compensation or a contractual penalty, you acquire no rights of use to the Works which have been used in unauthorised fashion.
§ 5 Registration upon the Web Site and end of usage
1. In order to be able to use all functionalities of the Web Site, registration is required. You are obliged to provide all mandatory information which is required during this registration about your person which has to be truthful, complete and up-to-date. You are also obliged to immediately make any subsequent changes to your data as required in the “YOUR ACCOUNT” area upon the Web Site. Furthermore, you are obliged to safeguard the security of your password and your user name and to immediately notify BRANSCH EUROPE GmbH & Co. KG of any loss or non-approved use of your data.
2. You are responsible to BRANSCH EUROPE GmbH & Co. KG for all activities, particularly downloads, which are undertaken upon the Web Site subject to the use of your registration data regardless of whether it concerns the approved or unapproved use of your registration data.
3. In the event of the violation of these Usage Terms and Conditions or the statutory provisions, BRANSCH EUROPE GmbH & Co. KG reserves the right to delete your registration at any time without advance warning.
4. This usage agreement shall run for an indefinite period of time and may be terminated by either party at any time. In order to make termination, a notification in text form is required and sufficient. Furthermore, BRANSCH EUROPE GmbH & Co. KG reserves the right to discontinue the operation of the web site altogether at any time.
§ 6 Liability restrictions
1. BRANSCH EUROPE GmbH & Co. KG shall be liable only in the event of the culpable violation of essential contractual obligations or if the damages are attributable to gross negligence or intentional wrongdoing upon the part of BRANSCH EUROPE GmbH & Co. KG or its vicarious agents or representatives. If the culpable violation of an essential contractual obligation is not attributable to gross negligence or intentional wrongdoing, then the liability of BRANSCH EUROPE GmbH & Co. KG is limited to contractually typical, foreseeable damages. This liability restriction shall also apply in all cases of gross negligence if there has been no culpable violation of essential contractual obligations.
2. In particular, BRANSCH EUROPE GmbH & Co. KG makes no guarantee or assumes no liability that the Web Site’s data are free from damaging data of any kind (e.g., computer viruses).
3. The liability of BRANSCH EUROPE GmbH & Co. KG owing to loss of life, physical injury or damage to health or other mandatory statutory provisions shall remain unaffected by the provisions of Clause 1 of § 6. No reversal of the burden of proof at the expense of the user is associated with the provisions of § 6.
§ 7 Indemnification from liability
You shall be obliged to indemnify BRANSCH EUROPE GmbH & Co. KG from all claims which third parties assert against BRANSCH EUROPE GmbH & Co. KG or the author of the affected Work owing to the use of the Work or Works which you have downloaded from the Web Site or through the use of your registration data unless your use was permitted in accordance with § 3 of these Usage Terms and Conditions. Furthermore, you shall be obliged to reimburse BRANSCH EUROPE GmbH & Co. KG or the affected author for any appropriate legal defense costs incurred.
§ 8 Final provisions
1. In the event that one or more of the aforementioned provisions of these Usage Terms and Conditions should be or become invalid, then the validity of the remaining provisions shall not be affected by this.
2. If the user is a businessman, public law entity or a special fund under public law, then the residence of BRANSCH EUROPE GmbH & Co. KG shall be the place of performance and exclusive jurisdiction for all legal disputes originating from the use of the Web Site.
3. Exclusively German law shall apply to the legal relationships of the parties subject to the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods.