General Terms and Conditions of PhotoClaim (version dated: 21 January 2016)
1. General; Scope of application
1.1 The service is operated by PhotoClaim GmbH, Ernststraße 4, 13509 Berlin, Germany, Tel.: +49 (30) 555 786 840, e-mail: firstname.lastname@example.org, VAT ID no.: DE302208213, (hereinafter referred to as “PhotoClaim”).
1.2 Photos – all products protected by copyright, in particular photographic works, photographs and cinematographic works.
1.3 Website – all publications on the Internet in the name of PhotoClaim GmbH, in particular under the address http://photoclaim.com/.
1.4 Proceedings – refers to in-court and out-of-court proceedings conducted for the purposes of enforcing customers’ claims regarding copyright.
1.5 The following Terms and Conditions apply to all declarations of intent, contracts and legal transactions and acts of a similar nature of PhotoClaim with its customers (hereinafter referred to as “Customer”) in connection with the services offered via its website. Counter-confirmations by the Customer with a reference to its own terms and conditions are expressly rejected; these shall not form part of agreements unless expressly confirmed in writing by PhotoClaim.
1.6 These General Terms and Conditions shall enter into force for all Customers as of 21 January 2016 unless the user objects to the validity of the new Terms and Conditions within two weeks after receipt of the e-mail notifying said user of the new Terms and Conditions.
2. Subject matter of the contract, Services provided by PhotoClaim
2.1 PhotoClaim offers the Customer services in connection with detecting and securing copyright violations as well as the enforcement of claims for damages arising from these violations. The Customer can commission PhotoClaim to do this for each violation for a fee.
2.2 Any presentation of PhotoClaim’s services, in particular on its website, in prospectuses, advertisements or other advertising materials does not represent a binding offer to conclude a contract.
3. Subject matter of the contract, Conclusion of contract
3.1 PhotoClaim detects and secures potential copyright violations for the Customer, assists the Customer in enforcing any claims arising therefrom (in particular compensation for damages, establishment of the violation, issuance of a declaration to cease and desist) by selecting and engaging lawyers in the name of the Customer and advances the charges incurred by the Customer due to the enforcement of the respective claims arising from these copyright violations, in the absence of any provisions to the contrary.
3.2 By submitting its photos, the Customer makes a binding offer to PhotoClaim to conclude a contract regarding the detection of potential copyright violations.
Notwithstanding the rights of PhotoClaim to reject certain Customers as contractual partners without giving any reason, the offer, and therefore the contract conclusion, is accepted either by means of an express declaration by PhotoClaim or by the ascertainment of potential copyright violations. A request for further information or documents to review the claim does not constitute a declaration of acceptance. Potential copyright violations are detected without charging a fee, in the absence of any provisions to the contrary.
3.3 Using an order form provided by PhotoClaim, the Customer confirms that the use of the photo is deemed to be a copyright violation and makes a binding offer to conclude an assistance agreement regarding assistance in the enforcement of the claims arising from the violation.
Notwithstanding the rights of PhotoClaim to reject certain orders without providing reasons, the offer, and therefore the contract conclusion, is accepted either by means of an express declaration by PhotoClaim or by a mediation of a lawyer. A request for further information or documents to review the claim does not constitute a declaration of acceptance.
3.4 The assistance also extends to the following claims (e.g. from the forfeiture of contractual penalties).
3.5 PhotoClaim is not permitted to act directly out-of-court or before a court. In order to assert damage claims, PhotoClaim proposes relevant lawyers on the basis of their suitability to the Customer.
3.6 If PhotoClaim engages a lawyer in the name of the Customer in the Customer’s best interests, a separate contractual relationship is formed directly between the Customer and the lawyer. PhotoClaim’s obligation to make advance payments in accordance with clause 3.7 remains unaffected thereby.
3.7 If lawyers are engaged, PhotoClaim is obligated to advance to the Customer the costs for advance payment claims by the lawyers. Furthermore, PhotoClaim is obligated to assume the necessary costs of prosecution – including the court fees – until the end of the proceedings unless the Customer indemnifies PhotoClaim from this obligation.
If the contractual relationship is terminated prior to the settlement of costs, for reasons that the Customer is responsible for, these shall be settled 30 days after the end of the contractual relationship.
3.8 PhotoClaim is not obligated to obtain an expert opinion to enforce the claims. If it is necessary to obtain an expert opinion, this shall be done based on a separate agreement only after prior consent from the Customer.
3.9 PhotoClaim reserves the right to continue providing assistance at any time of the assistance contract upon request only after obtaining the Customer’s consent.
3.10 If it becomes evident that the confirmation of the copyright violation by the Customer is based on incorrect facts, either due to wilful intent or gross negligence (licensing, lack of copyright, etc.), PhotoClaim shall charge all the costs resulting therefrom to the Customer.
The lawyers engaged are instructed in the name of the Customer to transfer the agreed fees arising from the engagement by PhotoClaim and any administrative fees already due directly to PhotoClaim. The damages claimed, less the conditional fee and administrative fee, shall be paid to the Customer by the 15th day of the following month. The Customer is obligated to name a PayPal account to PhotoClaim to which the funds can be transferred. If the Customer does not have a suitable account or if the Customer requests for a cheque to be sent in a given case, any bank charges withheld by the bank when the cheque is cashed or if a bank transfer (abroad) is made, shall be borne by the Customer.
5. Remuneration provisions
5.1 If, in court proceedings, the defendant is not ordered to pay claims of damages arising from the respective copyright violation, nor ordered to pay a forfeited contractual penalty or similar claim, nor opts for court proceedings after unsuccessfully attempting to come to an out-of-court agreement, PhotoClaim shall not receive commission nor an administrative fee.
5.2 In the event of an incorrect confirmation (see clause 3.10), PhotoClaim shall bill the Customer a higher administrative fee of EUR 200 excl. VAT, or EUR 238 incl. VAT. Furthermore, the Customer shall in this case bear all the costs of the proceedings without PhotoClaim being obligated to make an advance payment.
6. Duration of the contract, Termination
6.1 The assistance contract shall end once the damage claims have been settled or the contract lawyers engaged by PhotoClaim determine, at their due discretion, that collection is futile and PhotoClaim has notified the Customer thereof in written or electronic form.
6.2 The contractual relationship can, in addition, be terminated by the Customer as well as by PhotoClaim at any time with immediate effect. PhotoClaim reserves, in particular, the right to terminate the contract if the Customer violates its duties and obligations within the meaning of clauses 8.1 and 8.3 with gross negligence or wilful intent.
7. Assignment or pledge of the claim
The Customer undertakes to assign or pledge the claim, for which the lawyers of PhotoClaim were engaged, to third parties only with the written consent of PhotoClaim.
8. General obligations and duties of the Customer
8.1 The Customer shall assist PhotoClaim in the execution of its contractual tasks. The Customer shall notify PhotoClaim of the facts the copyright violation is based on in full and provide PhotoClaim with all the relevant documents and information required to process the case. In particular, the Customer may be requested to provide an affidavit concerning their status as a copyright holder. The Customer shall bear sole responsibility for the completeness and accuracy of the information and data. The Customer undertakes to provide any required supplementary information or documents upon request by PhotoClaim without delay. The Customer shall also notify PhotoClaim of any changes to the Customer’s address details without delay.
8.2 The Customer is obligated to inform PhotoClaim without delay if payments by the violator are made to the Customer directly.
8.3 The Customer undertakes to refrain from any communication with the violator concerning the claim after having concluded the contract with PhotoClaim in order to avoid any parallel processing. This means, in particular, to no longer enter into correspondence, negotiate, conclude settlements, declare waivers or initiate any own legal proceedings with the violator. Should any actions by the Customer be necessary in particular cases, these shall be agreed with PhotoClaim. Furthermore, the Customer is obligated to inform PhotoClaim without delay if the violator continues to have contact with the Customer even though the matter had been handed over to PhotoClaim to be processed within the framework of an assistance contract.
9. Guarantee; Liability
9.1 PhotoClaim does not guarantee the accuracy and completeness of the data and information provided by the Customer. In all other respects, the statutory guarantee applies to any defects/poor performance of the services of PhotoClaim.
9.2 Any damage claims due to the breach of a duty and claims in tort are excluded both with respect to PhotoClaim and its vicarious agents. This limitation of liability does not apply if the damages were caused with wilful intent or by gross negligence as well as in the event of a violation of material contractual obligations, i.e. obligations that make the performance of proper execution of a contract at all possible, which the Customer can always rely on always being complied with, and the violation of which puts the attainment of the contractual purpose for the other party at risk. Furthermore, the limitation of liability does not apply to damages arising from harm to life, body or health if PhotoClaim is at fault for breach of the duty. Furthermore, the limitation does not apply to damages based on the lack of a warranted characteristic or for a liability in accordance with product liability laws.
9.3 It is not possible for PhotoClaim to detect every copyright violation. PhotoClaim does not, therefore, claim that the list of potential copyright violations provided to the Customer is complete.
10. Data protection
PhotoClaim uses personal data only for the purpose of executing the contractual relationship with the Customer. The data protection practices of PhotoClaim comply with the Federal Data Protection Act (Bundesdatenschutzgesetz: BDSG) and the German Telemedia Act (Telemediengesetz: TMG). All information relating to the collection, processing and usage of Customers’ personal data can be found in the data privacy notices.
11. Final provisions
11.1 The contractual relationship between PhotoClaim and the Customer as well as these General Terms and Conditions are exclusively subject to the law of the Federal Republic of Germany and excludes German private law and the UN Convention on Contracts for the International Sale of Goods. If the Customer is a consumer, the mandatory consumer protection provisions in force in the country in which the Customer has its habitual place of residence shall apply insofar as they offer additional protection to the Customer.
11.2 The content of the contract concluded between the Customer and PhotoClaim arises from these General Terms and Conditions as well as the specific information provided in e-mails and letters, where applicable, within the context of the contractual relationship. In addition, Customers may not download the contract online.
11.3 If the Customer is a businessman, legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all the claims arising from the contract shall be Berlin.
11.4 If one or more of the provisions of these General Terms and Conditions are invalid, this shall not affect the validity of the remainder of the Terms and Conditions.