Photocase - Good for your eyes.

General Terms of Use

Status: December 2, 2008

• 1. Provider, Scope of Application
• 2. Definitions
• 3. Registration/user account/conclusion of contract
• 4. Uploading photographs
• 5. Downloading photographs
• 6. Revenues from Non-Gratuitous Downloads
• 7. Rights of Use for Placing Photographs on PHOTOCASE
• 8. Rights of Use for Articles, Interviews & Photo Contests
• 9. Downloaders’ Use of Photographs
• 10. Basic License
• 11. Naming Authors & Sources on Photographs
• 12. Inadmissible Content & Conduct
• 13. User’s Liability
• 14. PHOTOCASE’s Liability
• 15. Term & Termination of the Subscription & Agreement on Use
• 16. Data Protection
• 17. Amendments to the General Terms of Use
• 18. Governing Law

1. Provider, Scope of Application

1.1 The provider and operator of the online service (hereinafter referred to as "the Service," the "platform" or "PHOTOCASE") and thus the contractual partner of the Users of the Service (hereinafter referred to as "User") is Photocase Addicts GmbH, Rotherstrasse 20, 10245 Berlin, Germany (hereinafter referred to as "PHOTOCASE").

1.2. The following General Terms of Use contain the basic rules for using PHOTOCASE and governing all legal transactions and acts of similar nature effected between the User of the service and PHOTOCASE. They apply exclusively. The User’s terms of business are hereby refuted insofar as they contain provisions diverging from or conflicting with the Terms of Use given below.

2. Definitions

• "User" shall mean any individual person or legal entity or association of persons registered with PHOTOCASE.
• "Photographer" shall mean any User placing a photograph on PHOTOCASE.
• "Downloader" shall mean any User downloading a photograph placed on PHOTOCASE.

3. Registration, User Account, Conclusion of Contract

3.1 Using the service is contingent upon the User registering with PHOTOCASE and setting up a user account. When registering the User is bound to provide complete and truthful information. If subsequent to registration any of the data collected changes, then the User must update the particulars in his/her user account without delay.

3.2 On registering, the User chooses a user name and a password (referred to hereinafter as "Access Data"). User names are not permitted if their use constitutes an infringement of third-party rights, in particular the right to use a name or mark, or which otherwise break the law or are contrary to public policy. The User must keep his/her Access Data secret and protect it from unauthorised third-party access. If the User mislays his/her Access Data, or if he/she discovers or suspects that his/her Access Data is being used by a third party, then he/she must immediately notify PHOTOCASE to this effect.

3.3 On sending off the registration form, the User submits an offer to conclude an agreement on use with PHOTOCASE. PHOTOCASE reserves the right to turn down the User’s registration without giving reasons. On PHOTOCASE’s acceptance of the registration, the User receives a confirmatory email containing a link and an activation code, and again listing the User’s main particulars. On receipt of this confirmatory email, the agreement on use is brought about between PHOTOCASE and the User.

3.4 Using PHOTOCASE is not permitted for minors and individuals who have no or only limited legal capacity.

4. Uploading photographs

4.1 Before uploading a photo, the User confirms that he/she holds the rights required both for the upload and for permitting the download and further use of the photograph by other Users in accordance with its designated purpose.

4.2 On effecting an upload on PHOTOCASE for the first time, the User must disclose his/her full and correct name and his/her full and correct address before finalising the upload procedure.

4.3 PHOTOCASE reserves the right to reject or delete photographs which do not meet PHOTOCASE’s content criteria or formal requirements. The Photographer has no legal entitlement to post a photograph on PHOTOCASE or to have it left in place there.

5. Downloading photographs

5.1 On principle, PHOTOCASE may be used free of charge. The restrictions laid out in the following provisions and in Item 6.1 below apply solely when downloading photographs.

5.2 For downloading photographs, the User needs download credits from PHOTOCASE. Download credits grant entitlement to download photographs. Download credits can be acquired in various manners:

5.3 PHOTOCASE makes use of certified online payment systems for handling payments due for non-gratuitous download credits. The providers of these systems assume the handling of payments in the name of and to instructions from PHOTOCASE. However, PHOTOCASE retains title to the payment claims and reserves the right to assert such claims itself.

6. Revenues from Non-Gratuitous Downloads

6.1 When a photograph is downloaded using a purchased download credit, PHOTOCASE pays over the respective fee to the Photographer. To cover the cost of running the platform, PHOTOCASE directly deducts and retains a share of 40% from the Photographer’s claim to payment. Effectively, the Photographer therefore receives 60% of the fee paid for downloading his/her photograph.

6.2 PHOTOCASE immediately credits to the Photographer’s user account the respective balance from downloads of his/her photographs. Each User can see the balance in his/her account at any time by logging into his/her personal area at PHOTOCASE.

6.3 PHOTOCASE disburses the credit balance as soon as it reaches a sum of EUR 100. If the User expressly so wishes in any individual case, the credit balance may be paid out at the end of the month, but only if said balance has reached a sum of EUR 10. Disbursement is done by remitting the amount to the bank account specified by the User. If the Photographer keeps the account concerned at a bank outside the EURO zone, then the higher bank charges incurred for an international money transfer shall be at the Photographer’s expense. Alternatively, the Photographer may name a Paypal account for receiving payments.

7. Rights of Use for Placing Photographs on PHOTOCASE

7.1 To the extent required for operating the service, the Photographer grants PHOTOCASE in perpetuity non-exclusive rights of use, unrestricted in terms of territory. In particular, the Photographer grants PHOTOCASE the right to place the respective photograph on PHOTOCASE and to produce any copies required to this end. In addition, the User grants PHOTOCASE the right to make the photograph available to the public, to transmit the photograph and to otherwise reproduce it publicly, whereby this shall also include in particular transferral or provision via transmission of the content to other Users’ stationary or mobile terminals in the context of automated subscription (push services) or retrieval (pull services) (e.g. Podcasting, RSS feed, Atom feed, XML interface and other types of technology).

7.2 Beyond receiving download credits (Item 5.2.2), the Photographer shall not receive any remuneration for granting the rights of use specified in Item 7.1.

8. Rights of use regarding the placing of photographs on the PHOTOCASE platform

With no restriction whatsoever in terms of territory, the User also grants PHOTOCASE in perpetuity the required non-exclusive rights of use and other rights in any other contributions it submits. This includes in particular articles written by the User and interviews conducted with the User that are submitted to PHOTOCASE, and photographs sent in by the User for photo contests staged by PHOTOCASE. The rights granted under this Item 8 merely entitle PHOTOCASE to provide the contributions on its website for retrieval by its Users.

9. Downloaders’ Use of Photographs

9.1 At all times, downloaders’ rights of use are granted directly by the Photographer. In this respect, PHOTOCASE merely functions as an intermediary who provides the technical platform for passing on the offer that is effectively declared when a photograph is uploaded and placed on PHOTOCASE. When downloading a photograph, the User on activating download procedure accepts the Photographer’s offer to grant the rights of use.

9.2. By uploading a photograph and placing it on PHOTOCASE, the Photographer offers to grant each User specific non-exclusive rights of use, which entitle each User to download the photograph, i.e. to store it on his/her computer’s hard disc, and to use the photograph in a certain manner. Exactly which rights of use in the respective photograph are specifically granted to the downloader depends on how the downloader is wanting to use the photograph and which rights the Photographer is offering to grant. The right of use in accordance with the Basic License pursuant to Item 10 is granted at all times. Apart from this Basic License, the Photographer may offer various extended rights of use. During download procedure, the downloader may in turn choose between several types of license of varying content, insofar as they are offered by the Photographer.

10. Basic License

10.1 The Basic License entitles the downloader to download, i.e. store the photograph, and to use it in his/her private sphere as well as for commercial purposes in accordance with this Item 10.1. In addition, the Basic License permits using the photograph as an element in "original artwork" or in "an editorial context." "Original artwork" within the meaning of this provision means new works created by the downloader of which the relevant photograph is an integral part, such as collages, websites, print products, advertising media and materials for promotional purposes. In "an editorial context” means using the photograph in print and online articles laid out editorially and prepared journalistically, i.e. publications which are text-based and make use of the photograph for explanatory or illustrative purposes, or for conveying information, or for the sake of the text’s graphic design. The downloader is also always allowed to process the photograph when creating original artwork or when using it in an editorial context within the meaning of this Item 10.1.

Subject to Items 10.2, 10.3 and 11 below, the original artwork thus created, or the content containing the photograph that has been thus edited and prepared, may subsequently be comprehensively exploited by the downloader, namely by means of reproduction, distribution, publication and otherwise. To this end, the Photographer grants the downloader in perpetuity the required non-exclusive and transferable rights of use in the photograph, unrestricted in terms of territory.

10.2 In the following cases, authorised use of the photograph by the downloader depends on consent being obtained directly from the Photographer:

• Using the photograph in a context involving narcotics, crime or diseases, or in content of a sexual, pornographic, religious and/or politically extreme nature, or in any other operations or content potentially offensive to an average member of society, as well as for advertising tobacco products and/or alcoholic beverages, pharmaceuticals, food supplements (such as e.g. slimming products), birth control products and/or psychiatric drugs; this applies especially and in particular with regard to the persons shown on the photograph.
• If a certain identity is given to a person depicted on the photograph (for example, pictures giving a literal quotation or a testimonial attributed to any of the persons shown).

The above provisions also apply mutatis mutandis if the actual photograph concerned is processed or otherwise altered in any way.

10.3 Under the Basic License, the following usages are not permitted on principle. However, should the necessity arise, there is a possibility of acquiring extended rights of use in relation to these specific types of usage that are otherwise not permitted:

• In cases where original artwork or use in an editorial context within the meaning of Item 10.1 does not apply: merely copying and subsequently using a photograph, merely distributing a photograph or delivering it to third parties – including clients and associated companies – in some other form (e.g. resale, provision-on-demand), making a photograph available to the public, and exhibiting, displaying, performing, broadcasting or otherwise exploiting a photograph. This includes in particular and above all products exclusively or mainly depicting the photograph, i.e. on which the photograph is used without any textual reference, such as being linked to script or other graphic elements. This involves in particular photo databases, photo catalogues, CMS systems and compilations of similar kind, as well as use for depiction on posters, postcards, e-cards, items of clothing, mousepads, mugs or similar carriers.
• Copying, distributing and enabling public access to original artwork, in order to make it available to a large number of third parties for their own purposes. Similarly, making original artwork available to more than one third party, for instance by making a website template available to the public for downloading, is not permitted. If in any doubt, the downloader must contact the Photographer concerned.
• Distributing print publications and original artwork in a physical form, if the number of items put into circulation exceeds 250,000.
• Moreover, using the photographs in connection with content that is offensive, defamatory, racist, pornographic or glorifies violence, or in connection with any other manner of illegal content, is not permitted on principle. This applies in particular with regard to the persons depicted on the photograph.

11. Naming Authors & Sources on Photographs

Unless otherwise agreed in the license selected, when using a photograph the downloader must mention the Photographer as its author in the imprint or by the picture, stating his/her name or – if this is not possible – his/her user name on PHOTOCASE (copyright notice); at the same time PHOTOCASE is to be named as the source of the photograph (source notice). When a photograph is used in online presentations, the notice must contain an embedded link to the PHOTOCASE website. An admissible copyright and source notice would therefore read: "Photograph: [name of photographer] / Source: PHOTOCASE [appropriately linked in online presentations]”.

12. Inadmissible Content & Conduct

The User undertakes vis-à-vis PHOTOCASE not to upload any illegal pictures on to PHOTOCASE, in particular no pictures which

• are of a defamatory or derogatory nature;
• infringe another person’s right to protection of privacy or other personal rights, such as the right to one’s own picture, in particular third parties’ rights to their own picture;
• contain pornographic, obscene or abusive motifs and materials;
• infringe other parties’ copyrights, ancillary copyrights or trademark rights;
• are liable to civil action or prosecution on other grounds.

The same applies to articles, the content of the user profile and other contributions by the User which are published or intended for publication on PHOTOCASE. PHOTOCASE reserves the right to delete photographs, articles, user profiles and contributions if and as necessary.

13. User’s Liability

13.1 The User, in particular the Photographer, is solely responsible for all his/her assignments of rights and contributions, and for the content of his/her user profile. The User warrants and represents to PHOTOCASE in particular that he/she is entitled and able to assign the rights to the extent specified in Items 7, 8, 9 and 10, and to the extent specified in any extended rights of use that are offered. The User is under obligation to review with care whether a photograph and its intended use on PHOTOCASE constitute an infringement of third-party rights.

13.2 If any claims are filed against PHOTOCASE by third parties as a result of a culpable violation of the duties incumbent on the User – and in particular on the Photographer – regarding the granting of rights of use, then the User shall fully release and discharge PHOTOCASE on first demand from all and any liability and costs, including litigation costs. The same applies if a claim is filed against a downloader by a third party, based on a violation of the Photographer’s duties towards such downloader in respect of the assignment of rights of use. PHOTOCASE shall immediately inform the User if any such claim is filed, and insofar as is required by law and/or possible, it shall give the User an opportunity to enter a defence against the claim being asserted.

13.3 Item 13.2 shall apply mutatis mutandis to any claims by other Users or third parties due to the subject-matter of a photograph – regardless of its authorship – infringing a third party’s legal position, in particular exploitation rights under copyright law or personal rights (in particular the right to one’s own picture), or if any other third-party rights (in particular personal rights) are infringed by the User’s contributions or the content of his/her user profile.

14. PHOTOCASE’s Liability

PHOTOCASE shall be liable in accordance with statutory regulations, with the following limitations: if a registered User sustains any damage due to loss of data, then PHOTOCASE shall not be held liable insofar as the damage would have been avoided if the User had stored all the relevant data in its entirety at regular intervals. Provided any damage occurring does not involve mortal injury, physical harm or health damage, and as long as only slight negligence applies, PHOTOCASE’s liability for any damage which is unforeseeable or atypical for the type of contract is excluded.

15. Term & Termination of the Subscription & Agreement on Use

15.1 The agreement on use is concluded for an indefinite period. Routine notice of termination may be given by either party at any time. PHOTOCASE and the User reserve the right to give immediate extraordinary notice. PHOTOCASE may give extraordinary notice in particular in the event of any serious breach of these Terms of Use. In all events, notice terminating the agreement on use must be given in text form.

15.2. As a more lenient measure in the event of a breach of these Terms of Use, PHOTOCASE may also temporarily inactivate the User’s account in order to urge him/her to comply with his/her obligations. The User shall be notified in writing about any such inactivation of his/her account.

15.3 In the event of his/her user account being inactivated or of PHOTOCASE giving notice for important cause, the User concerned shall be prohibited from re-registering and opening a new user account with PHOTOCASE, until such time as PHOTOCASE gives express prior approval.

15.4 When notice of termination takes effect, PHOTOCASE shall delete the registered User’s account including all the photographs placed on PHOTOCASE. PHOTOCASE shall refund pro rata any payments already made for non-gratuitous download credits purchased.

15.5 The credit balance in a registered User’s account shall be settled on the date when notice of termination takes effect. Irrespective of the amount, the existing credit balance shall be paid out to the registered User 14 days after termination of the agreement on use.

15.6. Photocase subscriptions have a 3 month minimum and renew automatically. You will be billed monthly. After the 3 month minimum time period has passed, if you wish to cancel your subscription you must do so in writing before the beginning of the next month.

16. Data Protection

Further information on data protection and data safety can be obtained from PHOTOCASE’s Data Protection Policy.

17. Amendments to the General Terms of Use

PHOTOCASE reserves the right to amend these General Terms of Use at any time. On logging in, Users will be notified on a separate Internet page about any amendments or the new Terms of Use. Registered Users are given 7 days to consider whether to accept application of the amendments or the new Terms of Use. During this period, the User may continue using PHOTOCASE in accordance with the unaltered Terms of Use. In the event that the User decides not to accept application of the amendments or the new Terms of Use, PHOTOCASE reserves the right to exercise its right to give routine notice. On the relevant page on its website, PHOTOCASE will specifically draw registered Users’ attention to the time allowed for consideration, to the deadline, and to its reservation of the right to give notice.

18. Governing Law

Both the contractual relationship between PHOTOCASE and the registered User and these General Terms of Use shall exclusively be governed by the laws of the Federal Republic of Germany, excluding provisions on conflict of laws.

© Copyright 2008 Photocase. All rights reserved.

• Print Terms of Use