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General terms and conditions

General Terms and Conditions of the stock photo agency MAGROUND GmbH (version 09/2021)

A. General


1. The following General Terms and Conditions (hereinafter GTC) apply to all business relationships between you (hereinafter Customer) and MAGROUND GmbH (hereinafter MAGROUND). (When you enter into a business relationship with MAGROUND on behalf of your employer, you are simultaneously confirming that you are authorized to do so and entering into the business relationship on behalf of yourself and your employer.) All quotations, deliveries, electronic transmissions, as well as the assignment of usage rights are, without exception, subject to change and not binding. Other usage rights agreements must be negotiated separately (individually).


2. MAGROUND operates an online image database including photographs, HDR-Domes, 360°-Photos and videos. Image material is only transmitted digitally.


3. The GTC version valid at the time the contract is concluded shall be applicable. Any deviating, conflicting or complementary GTC shall not become part of the contract, even if known to MAGROUND, unless MAGROUND confirms their validity explicitly in writing. In the case of transmission and, if applicable, use of electronically transmitted image data, a contractual relationship shall only become established on the basis of these General Terms and Conditions, otherwise the transmitted image data may not be used.


4. The GTC are deemed to have been taken note of and accepted with the online purchase, the downloading of any images and/or high-resolution data, or the written acceptance of the quotations.


5. Complaints shall be communicated by telephone within five working days of receipt of the image material by the Customer and in writing within another three working days; complaints about technical or other concealed deficiencies shall be submitted in writing immediately upon detection, but at the latest within five working days of receipt of the image data. If not modified by this section, § 377 HGB shall apply


6. The Customer must indicate the type, scope, and distribution area of the intended usage at the time the order is placed, at the latest before the technical utilization of the images, and in the case of advertising also the product. Usage of the material is not permitted until MAGROUND has agreed to the planned usage and the communicated purpose. “Low-resolution material” from the agency website shall not be used for publication and distribution. Passing digital material on by means of electronic data interchange or on data carriers is only permissible if this is required for the utilization of the usage rights granted to the Customer. If the information provided by the Customer does not correspond to the actual type of usage, or if the actual usage is not consistent with the information provided by the Customer, the usage consent is deemed not to have been given and MAGROUND is indemnified from claims for damages by third parties; otherwise the provisions of section E of these General Terms and Conditions apply to such cases.


7. Any image material provided will always remain to be the property of the agency/author. It is only being made available temporarily and for the purpose of obtaining usage rights within the meaning of the German Copyright Act.


B. License/09Fees/payment conditions


1. When purchasing in the online shop, the customer first selects the type and scope of the license with the corresponding price in the order process and is then shown the respective license description and price and invoice amount for the images in the shopping cart. By confirming the purchase and the General Terms and Conditions, the customer confirms the corresponding type and scope of the licenses to be purchased at the prices and invoice amount stated.


In the case of purchases outside of the web shop, the type and scope of the license and the corresponding price and invoice amount result from the previous offer from MAGROUND and the confirmation/release based thereon by the customer. The offer is deemed to be accepted under the given conditions with the release (also in writing by email).


2. The Customer undertakes to pay the license fee and prices according to these General Terms and Conditions and the terms of the offer respectively the bill/invoice.


3. The bill shall be issued by MAGROUND and shall form part of these GTC. It shall contain the permitted purpose of the selected images in an unrestricted form, any restrictions of the license in addition to those stipulated in the GTC, as well as the corresponding license price for said images.


4. Any use of our image material is subject to a fee. This also applies in cases where an image is used as a basis for drawings, caricatures, recreated photographs, or for layout purposes and customer presentations, as well as where image details are used and become components of a new image by means of montage, photo compositing, electronic image carriers, and similar methods.


5. Usage fees shall be charged for the usage of the transmitted images especially according to the prices agreed on during the purchase. Authorization for usage shall be obtained separately in each individual case.


5. Fees shall be agreed upon before use between the parties individually. They depend on the medium, type, and scope of usage, which must be specified to us. In this context, the Customer is obliged to precisely specify the intended purpose, the planned reproduction size, the planned period of usage, and the intended distribution area. All fees stated in quotations, price lists, and other documentation are net and exclusive of VAT and social security contribution for artists. According to section 24ff KSVG (Artists’ Social Security Act), contributions to the Social Security Fund for Artists, which are currently at 4.9%, are payable by the party using the image in addition to the above-mentioned fee/incidental costs. All bills of fees and costs are payable to MAGROUND within one week of receipt of the bill without any deduction.


6. Any usage going beyond the agreed scope shall be subject to a separate fee at least in the amount of an appropriate license fee. The fees only apply to one-off use for the specified purpose, scope, and language area. Any further usage shall be subject to additional fees and requires MAGROUND’s prior written consent. In the event of unauthorized usage and/or passing on of our image material, the penalty provisions pursuant to section E. 1. of these General Terms and Conditions shall apply.


7. Exclusive rights or blocking periods shall be agreed upon separately. Such special agreements are always subject to a surcharge on the basic fee, which is determined by MAGROUND after consultation.


8. As soon as a binding order was placed for image material or the Customer has communicated that he or she wishes to use the supplied or electronically transmitted image material in its entirety or in part, the fee shall be payable and MAGROUND is entitled to bill the Customer for the granting of usage rights, even if the publication or other usage has not yet taken place.


9. MAGROUND bills become due and payable net without any deduction within 30 days from receipt. If the Customer delays payment, MAGROUND is entitled to charge default interest in the amount of at least 5 percentage points above the current base rate pursuant to section 288 par. 1 BGB (German Civil Code). Cancellation fees within 7 days from billing are 60% of the billing amount (minimum amount €30.00), within 14 days from billing 100% of the billing amount.


10. If the intended publication or other usage does not take place, any fee that has already been paid cannot be reimbursed/reclaimed.


11. Fee payments shall always be made with reference to the invoice number as well as the name of purchasing company or person. If these details are missing, a claim for reimbursement of additional costs may be made that may be based on the extent of the additional work involved.


C. Limitation on power of disposition, liability, exploitation and copyrights


Part 1: Rights to the image material


1. All image samples shall be treated as originals. In principle, only the usage right of the photographic copyright shall be transferred. The granting of usage rights shall not constitute a transfer of ownership rights or copyrights. In particular, this applies to original images that are subject to further copyrights due to their content (e.g., works of visual or performance art). Making any necessary payments relating to the further copyrights as well as obtaining publication permits from collections, museums, etc. are the user’s responsibility.


2. Usage rights shall expire in case payment of the fee is not made in time. Unless otherwise agreed, the due date for payment shall be determined in accordance with Clause B 9. Usage of the images is strictly limited to the use, medium, period, printing method, positioning, image size, publication territory, sector, and other conditions specified in the order process or the offer or bill by MAGROUND. The granting of exclusive rights and agreement of blocking periods as well as sector protection require a separate agreement as well as a release declaration.


3. We explicitly reserve the right to transfer secondary rights to companies exploiting third-party rights and do not acknowledge clauses according to which the acceptance of a fee would preclude the exercising of further rights; exceptions to this include cases where the ordering party/user has been granted exclusive usage rights to or for the provided image material.


Part 2: Third party rights


4. MAGROUND does not guarantee any rights whatsoever nor give any guarantees whatsoever regarding the use of names, persons, trademarks, trade dress, nor of registered, non-registered or copyrighted designs, works of art or buildings that are depicted in the images. If the Customer requires further clarification with respect to the need for additional authorizations for usage, the Customer shall obtain legal advice independently.


5. Any release declaration issued by MAGROUND does not include any assurance that depicted persons or the owners of the rights in depicted works of visual or performing art as well as copyrighted designs, works of art or buildings have granted permission for publication. If the images are subject to freedom of panorama under the panorama regulation, no further written release is required for the depicted buildings. You can find information on this here. The Customer is responsible for obtaining the permission of third parties that might be required in individual cases or any publication authorizations.


6. Passing on or sublicensing the acquired usage rights to a customer in the context of a project is permitted within the scope of the acquired rights. Any commercial sale or duplication of the acquired images or any commercial sublicensing, offering of the images in an online gallery or on data carriers for the purpose of acquiring them, whether against payment or free of charge, is expressly not permitted” Similarly, the electronic image data shall not be stored and/or passed on to third parties. Special cases require our written approval. The Customer is obliged to notify us whether and to what extent he or she might, after all, have duplicated, stored image data or otherwise created master copies for their own archiving purposes.


Part 3: Liability


7. MAGROUND shall be liable for damage suffered by the Customer if and to the extent that such damage was caused intentionally or by gross negligence, is the consequence of the non-existence of a guaranteed quality, is based on a culpable breach of cardinal obligations, is the consequence of a culpable injury to health, body or life, or for which liability is provided for under the Product Liability Act, and in other cases of statutory mandatory liability, in each case in accordance with the statutory provisions. Cardinal obligations are such essential contractual obligations, the fulfilment of which make the proper execution of the contract possible in the first place and on the observance of which the contractual partner may regularly rely, and the violation of which on the other hand endangers the achievement of the purpose of the contract. Insofar as the breach of cardinal obligations was only slightly negligent and did not result in injury to life, limb or health, claims for damages shall, however, be limited in amount to the typical foreseeable damage.


In all other respects, MAGROUND's liability - irrespective of the legal grounds - shall be excluded. MAGROUND shall in particular not be liable for:


• Damages caused by or in the context of the breach of the customer's obligations arising, inter alia, from these GTC.


• Indirect damages and consequential costs (in particular losses, lost profits and expenses for replacement measures).


• Resulting damages of the customer from the loss of data, as far as the damages would have been avoided by a regular and complete backup of all relevant data by the customer. As far as possible, the customer will carry out or have carried out a regular and complete data backup itself or by a third party and is solely responsible for this.


• Damage to the computer system or other technical equipment used by the customer,


• The unauthorized acquisition of knowledge of personal data by third parties (e.g. by
hackers).


To the extent that MAGROUND's liability is limited or excluded under the above provisions, this shall also apply to the personal liability of MAGROUND’s legal representatives, employees and vicarious agents.


8. We assume no liability for any violations of the general rights to privacy of depicted persons or of the copyright of the image creator by usage of the image and/or text contravening the agreement or distorting the original meaning. If such rights are violated, the user alone shall be liable for damages to any third parties.


9. MAGROUND does not give any guarantees, whether explicit or implicit, with respect to the images, including, without restriction, any tacit guarantees for marketability and suitability for a specific purpose.


10. Apart from the liability stated above, MAGROUND cannot be held liable for general, punitive, special, indirect claims for compensation arising from the utilization or incidentally, for lost profit or other damages, costs, or losses arising from the utilization of the images by the Customer or by other means, even if MAGROUND has been informed about the possibility of such damage, costs, or losses.


Part 4: Use and storage


11. The images are only made available temporarily for the agreed type of usage. Afterward, the images must be deleted from the Customer’s electronic storage systems. Unused images must be deleted from the Customer’s electronic storage systems within 30 days of delivery.


12. In principle, electronic archiving is only permitted to take place at the Customer’s premises and only for the duration of the legitimate usage. Storage of the image data in online databases or other electronic archives that are accessible to third parties require an additional written agreement between MAGROUND and the Customer. The same applies to the storage of the image data on data carriers suitable for permanent archiving.


13. If the Customer passes the image material on to third parties with or without authorization, the Customer shall be liable for the incurred costs, penalties, and usage fees. The Customer shall be responsible for any wrongdoing of the third party to the same extent as if it was his or her own.


Part 5: Warranty


14. MAGROUND shall be liable for material defects in accordance with the applicable statutory provisions. The warranty period shall be 12 months.


15. The customer should check the files he has purchased for technical defects within a reasonable period of a few days and inform Maground immediately in the event of such defects.


D. Copyright/specimen copies


1. If the image material is acquired digitally, the name “MAGROUND.COM” must be electronically linked with the image data. The Customer must ensure through appropriate technical provisions that this link will be retained with each data transmission, with the transfer of image data to other data carriers, with the display on a screen, as well as with each public display so that MAGROUND can be identified as the photo agency at any time. This does not apply if the Customer has acquired a commercial license to use the images.


2. If image material is shown publicly in breach of clause 1, an appropriate license fee shall be due.


E. Indemnity/ Contractual penalty/liquidated damages


1. In the event of any use in violation of these GTC, in particular unauthorized use, defacement, modification, duplication, or passing on of the image material, unauthorized transfer of reprinting rights to third parties, as well as production of copies of digital data records or analogue display of the image contents contained in the data records for archiving purposes, as well as passing these on to third parties, as well as omitting to delete data as stipulated in the agreed terms, the Customer shall indemnify MAGROUND from all resulting claims by third parties, and in case the Customer has omitted to delete data / images as stipulated by this contract, a minimum fee of five times the agreed usage fee shall become due, subject to further claims for damages being brought forward. This shall not affect a further claim for damages being brought forward.


2. The payment of damages does not result in ownership rights or usage rights to the images being obtained.


G. MAGROUND online image database


1. MAGROUND grants the Customer free access to the MAGROUND online image database. The authorization to download image data is provided by means of a release effected by MAGROUND. MAGROUND is not obliged to give an enduring release to its customers. The Customer must procure the required client software himself/herself.


2. The Customer can use the MAGROUND online database to search for photographs in the image data inventories stored therein and transfer these to their own computer as preview images or high-resolution data. Downloading high-resolution data and layout data is only possible with a valid user number and password. They shall be treated confidentially by MAGROUND and the customer. If the access data is misused through the Customer’s fault, the Customer shall be liable for the resulting damage.


3. The Customer has no entitlement to the MAGROUND online image database being constantly accessible. It is, at all times, at MAGROUND’s discretion to switch off the online image database temporarily or permanently and to modify, delete or add to the contents stored therein.


H. Data privacy


The processing of personal data is governed by our Privacy Policy, which is available at the following link https://maground.com/legal/privacy


I. Final provisions


1. The law of the Federal Republic of Germany shall apply. The provisions of UN sales law shall not apply. German law shall also apply as agreed for deliveries abroad.


2. The place of jurisdiction and performance is Hamburg.


3. Except for an explicit written declaration of relinquishment, no action by MAGROUND may be considered a relinquishment of any provision of these GTC. Any delay in exercising its rights and responsibilities shall not constitute a relinquishment of the aforementioned rights and remedies on the part of MAGROUND. The one-time relinquishment of a right or remedy shall not constitute an impediment or relinquishment of said rights or remedies on a different occasion.


4. If individual provisions of this contract are, contrary to expectation, ineffective, this shall not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by a provision with corresponding effect that comes closest to the economic purpose of the intended regulation.


5. This contract replaces all existing written or verbal agreements between the parties. Amendments require written form; this also applies to any amendment to this written form requirement.


6. In case of doubt, the German version of these terms and conditions shall apply, which we will make available to our buyers upon request.