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The name webG is taken from web graphic, which in its original form is an animated graphic designed to visually highlight the text content on websites and in PowerPoint presentations.
webG.com is an online shop where advertising agencies/ internet agencies/ content managers/ content providers, business people and private individuals can purchase the web graphics that they require for the abovementioned purposes.
webG.com is an online shop where advertising agencies/ internet agencies/ content managers/ content providers, business people and private individuals can purchase the web graphics that they require for the abovementioned purposes.
GBC
General Terms and Conditions of WebG
I. Subject matter of the General Terms and Conditions
1. The terms and conditions set out below regulate use of the WebG e-commerce platform. WebG is a service provided by WebG GmbH, Humboldtstrasse 4, 40237 Düsseldorf, Germany. All types of lawful digital content in the areas of photography, illustration, animation, audio, typography and other media content or products created in a manner similar to photographs, computer-generated and/or animated graphics - at any stage of the creation process and in any technical form - and videos (hereinafter referred to as WebGs) are offered on the WebG e-commerce platform for use subject to a charge by way of a licence.
2. This agreement stipulates the terms and conditions according to which users may utilise the WebGs which are posted on the e-commerce platform by the respective copyright holders.
3. Any divergent, conflicting or supplementary conditions formulated by the user shall not constitute an inherent part of this agreement unless WebG provides its express consent thereto.
4. On posting/uploading/downloading image material to/from our website or pressing the button "Accept General Terms and Conditions", users accept the legal validity of these General Terms and Conditions (end-user licence agreement - EULA).
II. Conditions and arrangements for use, management of rights
1. Only natural or legal persons of unrestricted legal capacity are entitled to use the WebG service. The use of WebGs and the WebG e-commerce platform by minors is prohibited.
2. By virtue of the approval furnished pursuant to no. I. 4, the user affirms that he has the unlimited right to enter into this agreement as a contracting party, either in his own name and/or on behalf of the commissioned company or employer.
3. The term "user" refers to any natural or legal person or their representative concluding this licence agreement, including the employee or contractual partner of the natural or legal person or their representative who carries out processing or editing of the WebGs or who is otherwise involved in a creative process, e.g. image editors, image researchers, photographers, art directors or designers.
4. The user shall furnish true and complete information with regard to the details required for registration, such as name, address, age, etc.
5. The user undertakes to keep his access data for WebG (e.g. password) in a safe place and to prevent third parties from obtaining knowledge of this data. The user shall be liable to parties suffering damage as a result of any improper use by third parties which is made possible by culpable actions on the part of the user.
6. The user may alter or erase his personal details at any time, provided that all submitted orders and order processes have been completed in full.
7. The rights contract shall come into being, incorporating the General Terms and Conditions of WebG in their currently valid version, upon the user accepting WebG's binding offer to make the WebGs available for use subject to a fee by placing a corresponding order.
8. The user himself shall be responsible for ensuring he meets the technical requirements for use of the WebG e-commerce platform in accordance with the state of the art.
9. The WebGs posted shall be offered solely in the form created by WebG and in a digital format or for a digital application with a resolution of 72 dpi. They must not be modified, except for editorial applications or preparatory layout work, in the absence of any provisions to the contrary below.
10. All WebGs are protected by copyright in accordance with various laws of the Federal Republic of Germany, other applicable laws or international treaties.
Until all contractually agreed charges have been paid in full, a watermark shall be incorporated into the respective WebGs, restricting or excluding use of the WebG under the terms of the agreement, whereby the unauthorised removal of this watermark shall constitute a breach of these terms and conditions.
11. The WebGs shall be licensed for use in accordance with this agreement. Any use of images without consenting to this agreement or any breach of this agreement shall constitute an infringement of WebG's copyrights, as a result of which the user shall incur a contractual penalty as defined in these terms and conditions.
12. All WebGs shall remain the sole and exclusive property of WebG GmbH or its licensees.
III. Waiver of charges
The WebG copyright holder shall forego payment from the user for granting of the contractually agreed rights of use.
IV. Usage fee/other costs
1. Registration and use of the WebG e-commerce platform is free of charge.
2. The specified usage fee and, where appropriate, the costs of transmission and delivery, become payable upon submission of the offer for assignment for use by the user. The licence fee becomes due upon the WebG being made available for download by the user.
3. The order placed by the user is binding. The user shall be obliged to pay the full fee, irrespective of whether he uses the licence.
4. The price applicable on the date of the order shall be deemed to constitute the agreed usage fee. In the absence of any indication to the contrary, all prices on the WebG e-commerce platform, in offers, price lists or other documentation include value added tax.
5. Special payment arrangements may be agreed with licensees from the press, for example.
6. Telecommunication costs and other costs accruing to the user in connection with the use of WebGs, the WebG e-commerce platform and downloads shall be borne by the user.
7. All offers are non-binding; errors excepted.
V. Authorised scope of use
1. The granted right of use is a non-exclusive, non-assignable right to usage for promotional and editorial purposes. There are no temporal or geographic restrictions, neither is there a limit on the total number of copies which may be circulated. In the absence of any express stipulations to the contrary, the right of use shall not be restricted to a specific purpose (such as internet usage, advertising campaigns, etc.) or a specific number of instances of usage.
2. Both editorial and commercial use of the WebG is permitted.
The user registered with WebG shall be able to download the offered content after paying the usage fee in accordance with the contractual terms.
3. The user shall be entitled to make the WebG available by means of analogue, digital or any other storage or remote data transmission technology, with or without intermediate storage, by wireless means or via cable, and to transmit the WebG under the above-stated licence terms any desired number of times by way of any technical method (e.g. analogue, digital, high-resolution, incl. DVB-T, -C, -S and -H) by means of broadcasting transmissions, such as radio and television broadcasting, cable broadcasting, Hertzian waves, laser, microwaves, etc. or to make the WebG available to the public by means of similar technical facilities, irrespective of whether broadcasting takes place by means of terrestrial radio installations, cable television (also via the telephone network), including relaying by cable, satellites, including direct satellites (DBS), other data or telephone lines or networks such as ISDN, DSL, GSM, UMTS, radio relay, WAP, W-LAN, GPRS, WiFi, power line or other technical facilities such as push or pull, point-to-point or point-to-multipoint systems, by e-mail, via a website, via PowerPoint presentations prepared for one-off presentations, by RSS feed or by means of a combination of transmission channels.
4. The user shall be assigned the printing right, i.e. the right to use the WebG under the above-stated licence terms to produce, duplicate and disseminate illustrated or non-illustrated books, magazines and other printed items.
5. The user shall be assigned a videogram right to the effect that he shall be entitled to exploit the WebG by means of duplication and dissemination using all known types of analogue and digital image/audio/data media and storage media (image/audio media) of all types (CD, DVD, Cdi, Blu-ray, etc.).
6. The user shall be assigned the usage rights for advertising to the effect that he shall be entitled to use the WebG in unmodified form for advertising purposes, e.g. in programme trailers, on television, at the cinema, in printed items (advertisements, posters, programme announcements, etc.), value-added telephone services, on the internet (e.g. pop-up windows, pop-under windows, advertising banners, etc.), whereby this enumeration of forms of advertising is not exhaustive.
7. The user shall be assigned a limited editing right to the effect that he shall be entitled to edit the image material as follows, employing analogue, digital or other image editing methods:
Changes to the size of the image as supplied by WebG (enlargement, reduction in size, clipping), modification of colour information, alteration of colour, contrast and brightness values. The copyright holder and/or WebG retain the right to undertake changes to the image material beyond the aforesaid scope.
8. All other rights to the images - including all copyrights and other industrial property rights relating to the image material - shall be retained by the copyright holder and/or WebG.
9. The user may forward any WebG to an indefinite number of other authorised users, duplicate and disseminate any WebG or have any WebG duplicated and disseminated by authorised users under the terms of this agreement.
10. Exclusive rights and blocking periods must be agreed separately.
11. The right of use does not include the right to sell the WebG or the appurtenant licence.
12. The copyrighted WebG must not be edited, modified or altered in any other manner beyond the scope of the agreed editing right. Separate consent from WebG shall be required for any form of imitation, decompilation, complete or partial disassembly and/or re-assembly - also in combination with other WebGs - or media or images such as animations, clip arts, compositions, digital footage, digital video films, films, graphics, illustrations, pictures, moving sequences, photographs or any other form of visual presentation and modification or any other form of alteration. The user shall not be entitled to require WebG to disclose source codes or similar.
13. The copyrighted WebG must not be distorted or impaired or used in any other manner such as to infringe or jeopardise the moral rights of the copyright holder or to create the impression that the user is the holder of the copyright to the WebG.
14. Use in image databases, image catalogues and image collections of a similar nature shall not be permissible.
15. It shall further be prohibited to use WebGs or elements thereof as decorative features for offices, reception rooms, public places, restaurants and retail establishments, in connection with corporate identity documents or letterheads, or to remove without authorisation copyright information, watermarks or other marks from the position in which they have been applied to the WebG.
16. The user shall not be assigned a merchandising right for the WebG, which would constitute an entitlement to exploit the WebG commercially by selling it or by manufacturing and distributing goods of any kind featuring the WebG either in its entirety or parts thereof, in particular advertising materials, posters, postcards (including the electronic variety), items of clothing, printed materials including comics, phonograms, headwear, mouse pads, badges, unless the contracting parties reach an agreement to this effect in an extended licence, which shall be in written form and subject to a fee, whereby the user shall have no entitlement to the granting and conclusion of such a licence agreement by WebG.
17. WebGs or parts thereof may not be used as trademarks or logos or in order to enter into competition with WebG with regard to the licensing of image rights to WebGs.
18. It shall be prohibited to use WebGs - either directly or by virtue of the given context - in a setting in which an average observer might consider the WebG itself or the setting as a whole to be unlawful, disreputable, libellous, pornographic, defamatory, immoral, obscene, fraudulent, demagogic, glorifying violence or counter to the constitution, irrespective of whether this results from physical modification of the images, from the use of WebGs alongside an accompanying text or another image, or by any other means.
VI. Data protection
1. WebG undertakes to observe the statutory provisions on data protection, in particular the Federal Data Protection Act (BDSG) and the Act on Data Protection in Tele-Services (TDDSG, TMG).
2. The personal data collected by WebG in connection with the e-commerce platform www.webg.de shall be used by WebG solely for the purposes of contract administration, customer services, market and opinion research. Use beyond this scope shall take place only with the user's express consent.
3. The user and WebG shall be obliged to treat all mutual business and trade secrets and documentation confidentially and the user shall further be obliged to impose this obligation on his employees and agents, to the extent to which this is possible and reasonable. The scope of use shall be restricted to the contractually defined purpose.
4. Business and trade secrets must not be made accessible to third parties.
5. These obligations shall remain in force after termination of this agreement.
VII. Complaints/notifications of defects
The user is to provide WebG with notification of obvious defects by post to WebG GmbH, Humboldtstrasse 4, 40237 Düsseldorf, Germany, or by e-mailing info@webg.com immediately or at the latest within two weeks of said defects becoming apparent. Warranty rights for obvious defects shall lapse if notification is provided after the aforesaid period. Notification of non-obvious defects is to be provided by post or e-mail as soon as such defects are established. The warranty period for non-obvious defects shall end after six months.
VIII. Liability and warranty
1. The user shall be responsible for carrying out data back-ups at appropriate intervals and using appropriate equipment and for securing his server and his other relevant technical facilities against data loss, destruction, damage or impairment at his own risk and expense by means of standard data security and virus protection programs.
2. WebG warrants that use in the specified manner of the WebGs provided under the terms of this form of licence shall not constitute an infringement of any copyrights, trademarks, personal rights or other intellectual or industrial property rights held by third parties and that all WebGs have been duly released where applicable by means of a model/property release.
3. WebG provides no warranty with regard to specific expectations, the exploitability of WebGs, opportunities, sales or sales expectations on the part of the user or the user's final customer or their effectiveness and other personal characteristics or for the goods and services provided by the customer.
4. WebG shall not be liable for indirect damage or consequential damage, in particular lost profit, except where such damage results from intent or gross negligence.
WebG observes its duty to exercise due care. Except in cases of intent or gross negligence, WebG shall not be held liable for incorrect, incomplete or outdated information, input, transmission or transfer errors, mistaken identity or the partial or complete inability to furnish information, in particular with regard to its partners, executive bodies, agents and employees. The user shall have sole responsibility for selecting and using services and products. Liability for gross negligence on the part of employees and agents shall be excluded to the extent permissible by law.
5. WebG shall not be held liable for damage resulting from unauthorised parties using WebG contrary to the contractual terms with the aid of the password allocated to the user.
6. The user shall be required to ascertain at his own risk and expense whether use of the WebGs requires the consent of a third party or the acquisition of any additional rights. The user shall be required to obtain all releases and approvals at his own risk and expense and to consult a duly qualified third party at his own risk and expense in cases of doubt.
7. The user must not infringe any applicable laws or statutory provisions of any country, state or authority through the use of WebGs.
8. The user warrants that he does not live in a country or state to which the export of goods and services either directly or indirectly from the territory of the Federal Republic of Germany or the EU is banned or subject to restrictions. The user must not send or transmit WebGs to a state or country, to authorities, institutions, organisations or associations - including religious associations - where this is prohibited by laws, restrictions or provisions, including any such regulations of a religious nature. The user may not use WebGs in any manner which is prohibited in a certain state or country by laws, restrictions or provisions, including any such regulations of a religious nature.
9. The user affirms that he shall accept sole responsibility for use of the WebGs. The user is aware that he is granted no rights by WebG regarding the use of trademarks, brands, protected design work, art or architecture. The user shall himself obtain any rights and approvals which may be necessary for communication and reproduction purposes.
10. The user is aware that the use of WebGs may result in the levying of taxes, charges and duties and the imposition of fines. The user affirms that he shall pay any potential taxes, charges, duties and fines which may arise in connection with the assignment of rights under the terms of this agreement - including such costs resulting from unauthorised disposition by the user.
11. Should the user be acting on behalf of another party, customers must be duly notified of these terms and conditions.
IX. Compensation
1. Claims for damages shall be limited to typically foreseeable damage, except where they are based on intent, gross negligence, malice or causing death or personal injury.
2. The user shall indemnify WebG against all claims by third parties for damages, other claims, damages or expenditure which result from the use of WebGs or arise in any other manner from the present contractual relationship.
3. Claims for damages shall become statute-barred after a period of 12 months, with the exception of such claims based on tortiously or intentionally committed acts.
X. Contractual penalty
The user shall incur a contractual penalty to the sum of EUR 5,000 for any breach of this agreement, in particular with regard to sections V. and VI. Claims for damages shall remain unaffected by any such contractual penalties.
XI. Operation
1. WebG shall be operated at the sole discretion of WebG. In particular, WebG does not guarantee correct operation at all times or the uninterrupted availability and accessibility of the WebG e-commerce platform. WebG shall have absolute discretion with regard to regular access times.
2. As a general principle, servicing and maintenance work are to be carried out on weekdays before 8 a.m. and/or after 8 p.m. CET.
3. WebG reserves the right to cease operation or to modify operation of the e-commerce platform at any time. In this event, the user's future right of use shall not lapse. There shall be no reimbursements of effected payments, pro rata or otherwise. WebG expressly rejects any liability in this connection and no claims for compensation shall be assertible.
4. No response times have been agreed.
5. No warranty or compensation claims shall be assertible against WebG on whatever legal grounds (force majeure, war) for technical malfunctions, overloading of the WebG system or restricted accessibility of the latter.
6. For administrative purposes, in addition to a service hotline WebG can, in principle, also offer a website/electronic service. All necessary information relating to the documentation provided by WebG - in particular offerings and prices for services and individual contractual matters - shall be furnished to the user exclusively via the website and/or WebG's electronic service. WebG reserves the right to modify this arrangement.
7. Where applicable, the user shall receive personal access data to his account which may subsequently be altered by the user. To this end, the user undertakes to set up and maintain internet access, to view on a regular basis all documents and declarations of intent addressed to his account and/or to retrieve at appropriate intervals documents and declarations of intent which are sent to him by e-mail, to confirm receipt thereof, to print such documents and declarations where appropriate, to retain all documents and to protect them from unauthorised access by third parties.
XII. Amendments to the General Terms and Conditions/breaches of the General Terms and Conditions
WebG reserves the right to amend these General Terms and Conditions at any time, without stating any grounds. WebG shall make express reference to any amendments. Effected amendments shall not apply to orders which have already been placed or existing relationships between copyright holders and users. Where a user does not accept amendments, his corresponding right of use shall lapse automatically.
Notwithstanding possible consequences for the user under civil and criminal law, failure to observe any of the above provisions shall entitle WebG to terminate the agreement with the user concerned with immediate effect and to exclude the user from the WebG e-commerce platform.
XIII. Duration of the agreement and terminationn
1. The right of use assigned and exercised under the terms of this agreement shall apply for an indefinite period. Assignment of the right of use agreed under these terms and conditions shall terminate in particular if either of the contracting parties fails to meet their obligations under the terms of this agreement, if the user is insolvent and/or over-indebted, if insolvency proceedings or composition proceedings are pending, if the user ceases his business operations or if his business is transferred to or amalgamated with a third party.
2. The right to terminate this agreement for good cause, in particular in case of breaches of provisions hereof, shall remain unaffected.
3. Notice of termination shall be valid only when served in writing, and may be served by WebG in the form of an e-mail sent to the user's e-mail address as specified in the latter's account.
4. Following termination of the agreement on whatever grounds, the user shall have no entitlement to the provision of services from WebG or access to his account. WebG shall be entitled to undertake all necessary measures in this connection, without the user's consent and without prior notice.
5. The user expressly consents to receiving e-mails, e-mail newsletters and information material from WebG during the initiation of business relations, during the term of the agreement and after termination of the agreement. The user may revoke his declaration of consent at any time. Should the user revoke his declaration of consent, WebG shall be entitled to terminate the agreement, observing the due period of notice, or to provide all documentation in paper form instead of via its electronic services, thereby levying corresponding charges.
6. On termination of the agreement, the user shall be obliged to settle all outstanding fees and other charges and costs immediately.
7. On this agreement being terminated, the user must destroy all data and copies of the WebGs, discontinue use of the WebGs and ensure by appropriate measures that no third parties are able to use the WebGs without authorisation. WebG has the right to demand relevant information from the user. In particular, the user shall provide WebG with written confirmation that he has met all the above-stated requirements.
XIV. Licence fees and prices
1. The current licence fees, prices, terms and conditions published by WebG shall apply. The employed currency shall be the euro.
2. All stated charges include value added tax and remain subject to alteration. Errors and mistakes excepted.
3. Reasonable increases in prices and licence fees are permissible and shall be announced by WebG at short notice.
4. Price adjustments shall not affect the agreement and its (remaining) term. The user shall be entitled to terminate the agreement for good cause, if an existing right of use is affected by such price adjustments.
XV. Due date, terms of payment
1. Invoices shall be made out after the placing of orders in PDF format or as chosen by WebG. In the absence of any provisions to the contrary stipulated on the invoice, all invoices shall be payable as follows to the account specified on the invoice: 100% of the invoice amount without any deductions immediately after ordering.
2. Payment shall be effected by bank transfer.
3. The user is to ensure that his account is adequately covered. Any costs resulting from failed debit transactions or return debits shall be borne by the user. WebG shall additionally charge an administration fee of EUR 10.00 for each such instance. A reminder fee of EUR 5.00 shall be charged to the user's account for each reminder. Administration and reminder fees shall be due for payment immediately, without deductions.
4. Where agreed due dates for payment are not met, WebG shall impose interest on arrears to the amount of 8% above the base rate.
5. If the user fails to meet his payment obligation despite having received two requests for payment, WebG shall be entitled to terminate the contractual relationship without notice and close the user's account. Such termination shall apply to all licences acquired by the user.
6. WebG reserves the right to assert additional claims for damages resulting from default in payment.
7. Claims on the part of WebG shall not be offset against counter-claims on the part of the user and no rights of retention shall be assertible on the part of the user, unless the contracting parties agree to the contrary expressly and in writing and such arrangements are confirmed by declaratory judgement.
8. The user shall not be entitled to assign, pledge or dispose of any counter-claims in any other manner.
XVI. Applicable law, contractual language, place of performance, place of jurisdiction, subsidiary agreements, written form
1. These terms and conditions shall be subject to German law, to the exclusion of the provisions of the UN Sales Convention.
2. The contractual language shall be German.
3. Where the user is a businessman within the meaning of the German Commercial Code, a special fund under public law or a legal person under public law, Düsseldorf is agreed as the sole place of performance and jurisdiction, provided that this is permissible by law.
4. Any subsidiary agreements and amendments shall be legally valid in written form only. This provision also applies to revocation of the requirement for written form. WebG reserves the right to amend these General Terms and Conditions and to alter prices and shall provide due notification of such, referring to the right of revocation. Errors excepted.
5. Amendments shall be deemed to be approved by the user unless the latter immediately submits notice of objection. Objections are to be submitted in writing, insofar as this is permissible. Objections must be received by WebG within one month of corresponding notification by the latter.
XVII. Incorporation of the General Terms and Conditions by the image copyright holder
The image copyright holders of the respective WebGs have accepted WebG's General Terms and Conditions.
XVIII. Information on right of revocation
RIGHT OF REVOCATION FOR CONSUMERS
A customer who is a consumer enjoys a right of revocation in accordance with the following statutory information on the conditions pertaining to and consequences of the right of revocation for consumers.
NOTIFICATION REGARDING REVOCATION
REVOCATION RIGHT
You have the right to revoke your contractual acceptance within 14 days without stating your reasons for doing so. The cancellation may be effected in writing (e.g. letter, fax, e-mail) or – should the item be sent to you prior to this period expiring – by returning the item. The period begins on receipt of this notification in written form, but not before the contract has been concluded or our information obligations have been fulfilled as per Article 246 Section 2 in conjunction with Section 1 (1) and (2) of the Introductory Act to the German Civil Code (EGBGB). Revocation shall be considered timely if the notice of revocation or the item is dispatched within the above period. The revocation should be addressed to:
WebG GmbH, Humboldtstraße 4, 40237 Düsseldorf, Germany, e-mail: info@webg.com, fax: 0049 (0)211 9150 150
CONSEQUENCES OF REVOCATION
In the event of a valid revocation, each party shall return to the other party the performance received including any derived benefits (e.g. interest). If you are unable to return part or all of the goods or services supplied or cannot return them in their original condition, you must compensate for the loss of value where applicable. This may mean that you nevertheless have to fulfil the contractual payment obligations for the period prior to revocation. When returning items, this shall not apply if the deterioration in the item’s condition is attributable solely to an examination of the item such as would have been possible in a shop, for example. To avoid having to pay compensation for loss of value caused by usage of an item, refrain from treating it as your own property and avoid anything that would impair its value. Items that can be shipped as parcels shall be returned at our risk. You must pay the cost of returning items if the goods supplied correspond to those ordered and if the price of the item to be returned does not exceed 40 euros. This shall also apply if the price of the item is higher but you have not yet paid any consideration or made a contractually agreed part payment at the time of cancellation. If neither of the above apply, you shall incur no return shipping costs. Items that cannot be shipped as parcels shall be collected from your address. Obligations to refund payments must be fulfilled within 30 days. This period begins for you when you send your notice of revocation or return the item; for us, the period begins upon receipt of the above. Your revocation right shall expire prematurely if both parties perform the contract in full at your explicit request before you exercise your revocation right.
END OF THE NOTIFICATION REGARDING REVOCATION
XIX. Separability clause
Should any individual provision of these General Terms and Conditions be or become partially or entirely invalid or should a loophole exist in these terms and conditions, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced or the established loophole filled by means of an appropriate provision which, within the bounds of the law, is most closely in keeping with what the contracting parties intended or with what they would have intended according to the purpose of these General Terms and Conditions, if they had considered the point concerned.
Please send any queries to info@webg.com. Information correct as per: March 2009
Copyright © 2009 WebG GmbH
I. Subject matter of the General Terms and Conditions
1. The terms and conditions set out below regulate use of the WebG e-commerce platform. WebG is a service provided by WebG GmbH, Humboldtstrasse 4, 40237 Düsseldorf, Germany. All types of lawful digital content in the areas of photography, illustration, animation, audio, typography and other media content or products created in a manner similar to photographs, computer-generated and/or animated graphics - at any stage of the creation process and in any technical form - and videos (hereinafter referred to as WebGs) are offered on the WebG e-commerce platform for use subject to a charge by way of a licence.
2. This agreement stipulates the terms and conditions according to which users may utilise the WebGs which are posted on the e-commerce platform by the respective copyright holders.
3. Any divergent, conflicting or supplementary conditions formulated by the user shall not constitute an inherent part of this agreement unless WebG provides its express consent thereto.
4. On posting/uploading/downloading image material to/from our website or pressing the button "Accept General Terms and Conditions", users accept the legal validity of these General Terms and Conditions (end-user licence agreement - EULA).
II. Conditions and arrangements for use, management of rights
1. Only natural or legal persons of unrestricted legal capacity are entitled to use the WebG service. The use of WebGs and the WebG e-commerce platform by minors is prohibited.
2. By virtue of the approval furnished pursuant to no. I. 4, the user affirms that he has the unlimited right to enter into this agreement as a contracting party, either in his own name and/or on behalf of the commissioned company or employer.
3. The term "user" refers to any natural or legal person or their representative concluding this licence agreement, including the employee or contractual partner of the natural or legal person or their representative who carries out processing or editing of the WebGs or who is otherwise involved in a creative process, e.g. image editors, image researchers, photographers, art directors or designers.
4. The user shall furnish true and complete information with regard to the details required for registration, such as name, address, age, etc.
5. The user undertakes to keep his access data for WebG (e.g. password) in a safe place and to prevent third parties from obtaining knowledge of this data. The user shall be liable to parties suffering damage as a result of any improper use by third parties which is made possible by culpable actions on the part of the user.
6. The user may alter or erase his personal details at any time, provided that all submitted orders and order processes have been completed in full.
7. The rights contract shall come into being, incorporating the General Terms and Conditions of WebG in their currently valid version, upon the user accepting WebG's binding offer to make the WebGs available for use subject to a fee by placing a corresponding order.
8. The user himself shall be responsible for ensuring he meets the technical requirements for use of the WebG e-commerce platform in accordance with the state of the art.
9. The WebGs posted shall be offered solely in the form created by WebG and in a digital format or for a digital application with a resolution of 72 dpi. They must not be modified, except for editorial applications or preparatory layout work, in the absence of any provisions to the contrary below.
10. All WebGs are protected by copyright in accordance with various laws of the Federal Republic of Germany, other applicable laws or international treaties.
Until all contractually agreed charges have been paid in full, a watermark shall be incorporated into the respective WebGs, restricting or excluding use of the WebG under the terms of the agreement, whereby the unauthorised removal of this watermark shall constitute a breach of these terms and conditions.
11. The WebGs shall be licensed for use in accordance with this agreement. Any use of images without consenting to this agreement or any breach of this agreement shall constitute an infringement of WebG's copyrights, as a result of which the user shall incur a contractual penalty as defined in these terms and conditions.
12. All WebGs shall remain the sole and exclusive property of WebG GmbH or its licensees.
III. Waiver of charges
The WebG copyright holder shall forego payment from the user for granting of the contractually agreed rights of use.
IV. Usage fee/other costs
1. Registration and use of the WebG e-commerce platform is free of charge.
2. The specified usage fee and, where appropriate, the costs of transmission and delivery, become payable upon submission of the offer for assignment for use by the user. The licence fee becomes due upon the WebG being made available for download by the user.
3. The order placed by the user is binding. The user shall be obliged to pay the full fee, irrespective of whether he uses the licence.
4. The price applicable on the date of the order shall be deemed to constitute the agreed usage fee. In the absence of any indication to the contrary, all prices on the WebG e-commerce platform, in offers, price lists or other documentation include value added tax.
5. Special payment arrangements may be agreed with licensees from the press, for example.
6. Telecommunication costs and other costs accruing to the user in connection with the use of WebGs, the WebG e-commerce platform and downloads shall be borne by the user.
7. All offers are non-binding; errors excepted.
V. Authorised scope of use
1. The granted right of use is a non-exclusive, non-assignable right to usage for promotional and editorial purposes. There are no temporal or geographic restrictions, neither is there a limit on the total number of copies which may be circulated. In the absence of any express stipulations to the contrary, the right of use shall not be restricted to a specific purpose (such as internet usage, advertising campaigns, etc.) or a specific number of instances of usage.
2. Both editorial and commercial use of the WebG is permitted.
The user registered with WebG shall be able to download the offered content after paying the usage fee in accordance with the contractual terms.
3. The user shall be entitled to make the WebG available by means of analogue, digital or any other storage or remote data transmission technology, with or without intermediate storage, by wireless means or via cable, and to transmit the WebG under the above-stated licence terms any desired number of times by way of any technical method (e.g. analogue, digital, high-resolution, incl. DVB-T, -C, -S and -H) by means of broadcasting transmissions, such as radio and television broadcasting, cable broadcasting, Hertzian waves, laser, microwaves, etc. or to make the WebG available to the public by means of similar technical facilities, irrespective of whether broadcasting takes place by means of terrestrial radio installations, cable television (also via the telephone network), including relaying by cable, satellites, including direct satellites (DBS), other data or telephone lines or networks such as ISDN, DSL, GSM, UMTS, radio relay, WAP, W-LAN, GPRS, WiFi, power line or other technical facilities such as push or pull, point-to-point or point-to-multipoint systems, by e-mail, via a website, via PowerPoint presentations prepared for one-off presentations, by RSS feed or by means of a combination of transmission channels.
4. The user shall be assigned the printing right, i.e. the right to use the WebG under the above-stated licence terms to produce, duplicate and disseminate illustrated or non-illustrated books, magazines and other printed items.
5. The user shall be assigned a videogram right to the effect that he shall be entitled to exploit the WebG by means of duplication and dissemination using all known types of analogue and digital image/audio/data media and storage media (image/audio media) of all types (CD, DVD, Cdi, Blu-ray, etc.).
6. The user shall be assigned the usage rights for advertising to the effect that he shall be entitled to use the WebG in unmodified form for advertising purposes, e.g. in programme trailers, on television, at the cinema, in printed items (advertisements, posters, programme announcements, etc.), value-added telephone services, on the internet (e.g. pop-up windows, pop-under windows, advertising banners, etc.), whereby this enumeration of forms of advertising is not exhaustive.
7. The user shall be assigned a limited editing right to the effect that he shall be entitled to edit the image material as follows, employing analogue, digital or other image editing methods:
Changes to the size of the image as supplied by WebG (enlargement, reduction in size, clipping), modification of colour information, alteration of colour, contrast and brightness values. The copyright holder and/or WebG retain the right to undertake changes to the image material beyond the aforesaid scope.
8. All other rights to the images - including all copyrights and other industrial property rights relating to the image material - shall be retained by the copyright holder and/or WebG.
9. The user may forward any WebG to an indefinite number of other authorised users, duplicate and disseminate any WebG or have any WebG duplicated and disseminated by authorised users under the terms of this agreement.
10. Exclusive rights and blocking periods must be agreed separately.
11. The right of use does not include the right to sell the WebG or the appurtenant licence.
12. The copyrighted WebG must not be edited, modified or altered in any other manner beyond the scope of the agreed editing right. Separate consent from WebG shall be required for any form of imitation, decompilation, complete or partial disassembly and/or re-assembly - also in combination with other WebGs - or media or images such as animations, clip arts, compositions, digital footage, digital video films, films, graphics, illustrations, pictures, moving sequences, photographs or any other form of visual presentation and modification or any other form of alteration. The user shall not be entitled to require WebG to disclose source codes or similar.
13. The copyrighted WebG must not be distorted or impaired or used in any other manner such as to infringe or jeopardise the moral rights of the copyright holder or to create the impression that the user is the holder of the copyright to the WebG.
14. Use in image databases, image catalogues and image collections of a similar nature shall not be permissible.
15. It shall further be prohibited to use WebGs or elements thereof as decorative features for offices, reception rooms, public places, restaurants and retail establishments, in connection with corporate identity documents or letterheads, or to remove without authorisation copyright information, watermarks or other marks from the position in which they have been applied to the WebG.
16. The user shall not be assigned a merchandising right for the WebG, which would constitute an entitlement to exploit the WebG commercially by selling it or by manufacturing and distributing goods of any kind featuring the WebG either in its entirety or parts thereof, in particular advertising materials, posters, postcards (including the electronic variety), items of clothing, printed materials including comics, phonograms, headwear, mouse pads, badges, unless the contracting parties reach an agreement to this effect in an extended licence, which shall be in written form and subject to a fee, whereby the user shall have no entitlement to the granting and conclusion of such a licence agreement by WebG.
17. WebGs or parts thereof may not be used as trademarks or logos or in order to enter into competition with WebG with regard to the licensing of image rights to WebGs.
18. It shall be prohibited to use WebGs - either directly or by virtue of the given context - in a setting in which an average observer might consider the WebG itself or the setting as a whole to be unlawful, disreputable, libellous, pornographic, defamatory, immoral, obscene, fraudulent, demagogic, glorifying violence or counter to the constitution, irrespective of whether this results from physical modification of the images, from the use of WebGs alongside an accompanying text or another image, or by any other means.
VI. Data protection
1. WebG undertakes to observe the statutory provisions on data protection, in particular the Federal Data Protection Act (BDSG) and the Act on Data Protection in Tele-Services (TDDSG, TMG).
2. The personal data collected by WebG in connection with the e-commerce platform www.webg.de shall be used by WebG solely for the purposes of contract administration, customer services, market and opinion research. Use beyond this scope shall take place only with the user's express consent.
3. The user and WebG shall be obliged to treat all mutual business and trade secrets and documentation confidentially and the user shall further be obliged to impose this obligation on his employees and agents, to the extent to which this is possible and reasonable. The scope of use shall be restricted to the contractually defined purpose.
4. Business and trade secrets must not be made accessible to third parties.
5. These obligations shall remain in force after termination of this agreement.
VII. Complaints/notifications of defects
The user is to provide WebG with notification of obvious defects by post to WebG GmbH, Humboldtstrasse 4, 40237 Düsseldorf, Germany, or by e-mailing info@webg.com immediately or at the latest within two weeks of said defects becoming apparent. Warranty rights for obvious defects shall lapse if notification is provided after the aforesaid period. Notification of non-obvious defects is to be provided by post or e-mail as soon as such defects are established. The warranty period for non-obvious defects shall end after six months.
VIII. Liability and warranty
1. The user shall be responsible for carrying out data back-ups at appropriate intervals and using appropriate equipment and for securing his server and his other relevant technical facilities against data loss, destruction, damage or impairment at his own risk and expense by means of standard data security and virus protection programs.
2. WebG warrants that use in the specified manner of the WebGs provided under the terms of this form of licence shall not constitute an infringement of any copyrights, trademarks, personal rights or other intellectual or industrial property rights held by third parties and that all WebGs have been duly released where applicable by means of a model/property release.
3. WebG provides no warranty with regard to specific expectations, the exploitability of WebGs, opportunities, sales or sales expectations on the part of the user or the user's final customer or their effectiveness and other personal characteristics or for the goods and services provided by the customer.
4. WebG shall not be liable for indirect damage or consequential damage, in particular lost profit, except where such damage results from intent or gross negligence.
WebG observes its duty to exercise due care. Except in cases of intent or gross negligence, WebG shall not be held liable for incorrect, incomplete or outdated information, input, transmission or transfer errors, mistaken identity or the partial or complete inability to furnish information, in particular with regard to its partners, executive bodies, agents and employees. The user shall have sole responsibility for selecting and using services and products. Liability for gross negligence on the part of employees and agents shall be excluded to the extent permissible by law.
5. WebG shall not be held liable for damage resulting from unauthorised parties using WebG contrary to the contractual terms with the aid of the password allocated to the user.
6. The user shall be required to ascertain at his own risk and expense whether use of the WebGs requires the consent of a third party or the acquisition of any additional rights. The user shall be required to obtain all releases and approvals at his own risk and expense and to consult a duly qualified third party at his own risk and expense in cases of doubt.
7. The user must not infringe any applicable laws or statutory provisions of any country, state or authority through the use of WebGs.
8. The user warrants that he does not live in a country or state to which the export of goods and services either directly or indirectly from the territory of the Federal Republic of Germany or the EU is banned or subject to restrictions. The user must not send or transmit WebGs to a state or country, to authorities, institutions, organisations or associations - including religious associations - where this is prohibited by laws, restrictions or provisions, including any such regulations of a religious nature. The user may not use WebGs in any manner which is prohibited in a certain state or country by laws, restrictions or provisions, including any such regulations of a religious nature.
9. The user affirms that he shall accept sole responsibility for use of the WebGs. The user is aware that he is granted no rights by WebG regarding the use of trademarks, brands, protected design work, art or architecture. The user shall himself obtain any rights and approvals which may be necessary for communication and reproduction purposes.
10. The user is aware that the use of WebGs may result in the levying of taxes, charges and duties and the imposition of fines. The user affirms that he shall pay any potential taxes, charges, duties and fines which may arise in connection with the assignment of rights under the terms of this agreement - including such costs resulting from unauthorised disposition by the user.
11. Should the user be acting on behalf of another party, customers must be duly notified of these terms and conditions.
IX. Compensation
1. Claims for damages shall be limited to typically foreseeable damage, except where they are based on intent, gross negligence, malice or causing death or personal injury.
2. The user shall indemnify WebG against all claims by third parties for damages, other claims, damages or expenditure which result from the use of WebGs or arise in any other manner from the present contractual relationship.
3. Claims for damages shall become statute-barred after a period of 12 months, with the exception of such claims based on tortiously or intentionally committed acts.
X. Contractual penalty
The user shall incur a contractual penalty to the sum of EUR 5,000 for any breach of this agreement, in particular with regard to sections V. and VI. Claims for damages shall remain unaffected by any such contractual penalties.
XI. Operation
1. WebG shall be operated at the sole discretion of WebG. In particular, WebG does not guarantee correct operation at all times or the uninterrupted availability and accessibility of the WebG e-commerce platform. WebG shall have absolute discretion with regard to regular access times.
2. As a general principle, servicing and maintenance work are to be carried out on weekdays before 8 a.m. and/or after 8 p.m. CET.
3. WebG reserves the right to cease operation or to modify operation of the e-commerce platform at any time. In this event, the user's future right of use shall not lapse. There shall be no reimbursements of effected payments, pro rata or otherwise. WebG expressly rejects any liability in this connection and no claims for compensation shall be assertible.
4. No response times have been agreed.
5. No warranty or compensation claims shall be assertible against WebG on whatever legal grounds (force majeure, war) for technical malfunctions, overloading of the WebG system or restricted accessibility of the latter.
6. For administrative purposes, in addition to a service hotline WebG can, in principle, also offer a website/electronic service. All necessary information relating to the documentation provided by WebG - in particular offerings and prices for services and individual contractual matters - shall be furnished to the user exclusively via the website and/or WebG's electronic service. WebG reserves the right to modify this arrangement.
7. Where applicable, the user shall receive personal access data to his account which may subsequently be altered by the user. To this end, the user undertakes to set up and maintain internet access, to view on a regular basis all documents and declarations of intent addressed to his account and/or to retrieve at appropriate intervals documents and declarations of intent which are sent to him by e-mail, to confirm receipt thereof, to print such documents and declarations where appropriate, to retain all documents and to protect them from unauthorised access by third parties.
XII. Amendments to the General Terms and Conditions/breaches of the General Terms and Conditions
WebG reserves the right to amend these General Terms and Conditions at any time, without stating any grounds. WebG shall make express reference to any amendments. Effected amendments shall not apply to orders which have already been placed or existing relationships between copyright holders and users. Where a user does not accept amendments, his corresponding right of use shall lapse automatically.
Notwithstanding possible consequences for the user under civil and criminal law, failure to observe any of the above provisions shall entitle WebG to terminate the agreement with the user concerned with immediate effect and to exclude the user from the WebG e-commerce platform.
XIII. Duration of the agreement and terminationn
1. The right of use assigned and exercised under the terms of this agreement shall apply for an indefinite period. Assignment of the right of use agreed under these terms and conditions shall terminate in particular if either of the contracting parties fails to meet their obligations under the terms of this agreement, if the user is insolvent and/or over-indebted, if insolvency proceedings or composition proceedings are pending, if the user ceases his business operations or if his business is transferred to or amalgamated with a third party.
2. The right to terminate this agreement for good cause, in particular in case of breaches of provisions hereof, shall remain unaffected.
3. Notice of termination shall be valid only when served in writing, and may be served by WebG in the form of an e-mail sent to the user's e-mail address as specified in the latter's account.
4. Following termination of the agreement on whatever grounds, the user shall have no entitlement to the provision of services from WebG or access to his account. WebG shall be entitled to undertake all necessary measures in this connection, without the user's consent and without prior notice.
5. The user expressly consents to receiving e-mails, e-mail newsletters and information material from WebG during the initiation of business relations, during the term of the agreement and after termination of the agreement. The user may revoke his declaration of consent at any time. Should the user revoke his declaration of consent, WebG shall be entitled to terminate the agreement, observing the due period of notice, or to provide all documentation in paper form instead of via its electronic services, thereby levying corresponding charges.
6. On termination of the agreement, the user shall be obliged to settle all outstanding fees and other charges and costs immediately.
7. On this agreement being terminated, the user must destroy all data and copies of the WebGs, discontinue use of the WebGs and ensure by appropriate measures that no third parties are able to use the WebGs without authorisation. WebG has the right to demand relevant information from the user. In particular, the user shall provide WebG with written confirmation that he has met all the above-stated requirements.
XIV. Licence fees and prices
1. The current licence fees, prices, terms and conditions published by WebG shall apply. The employed currency shall be the euro.
2. All stated charges include value added tax and remain subject to alteration. Errors and mistakes excepted.
3. Reasonable increases in prices and licence fees are permissible and shall be announced by WebG at short notice.
4. Price adjustments shall not affect the agreement and its (remaining) term. The user shall be entitled to terminate the agreement for good cause, if an existing right of use is affected by such price adjustments.
XV. Due date, terms of payment
1. Invoices shall be made out after the placing of orders in PDF format or as chosen by WebG. In the absence of any provisions to the contrary stipulated on the invoice, all invoices shall be payable as follows to the account specified on the invoice: 100% of the invoice amount without any deductions immediately after ordering.
2. Payment shall be effected by bank transfer.
3. The user is to ensure that his account is adequately covered. Any costs resulting from failed debit transactions or return debits shall be borne by the user. WebG shall additionally charge an administration fee of EUR 10.00 for each such instance. A reminder fee of EUR 5.00 shall be charged to the user's account for each reminder. Administration and reminder fees shall be due for payment immediately, without deductions.
4. Where agreed due dates for payment are not met, WebG shall impose interest on arrears to the amount of 8% above the base rate.
5. If the user fails to meet his payment obligation despite having received two requests for payment, WebG shall be entitled to terminate the contractual relationship without notice and close the user's account. Such termination shall apply to all licences acquired by the user.
6. WebG reserves the right to assert additional claims for damages resulting from default in payment.
7. Claims on the part of WebG shall not be offset against counter-claims on the part of the user and no rights of retention shall be assertible on the part of the user, unless the contracting parties agree to the contrary expressly and in writing and such arrangements are confirmed by declaratory judgement.
8. The user shall not be entitled to assign, pledge or dispose of any counter-claims in any other manner.
XVI. Applicable law, contractual language, place of performance, place of jurisdiction, subsidiary agreements, written form
1. These terms and conditions shall be subject to German law, to the exclusion of the provisions of the UN Sales Convention.
2. The contractual language shall be German.
3. Where the user is a businessman within the meaning of the German Commercial Code, a special fund under public law or a legal person under public law, Düsseldorf is agreed as the sole place of performance and jurisdiction, provided that this is permissible by law.
4. Any subsidiary agreements and amendments shall be legally valid in written form only. This provision also applies to revocation of the requirement for written form. WebG reserves the right to amend these General Terms and Conditions and to alter prices and shall provide due notification of such, referring to the right of revocation. Errors excepted.
5. Amendments shall be deemed to be approved by the user unless the latter immediately submits notice of objection. Objections are to be submitted in writing, insofar as this is permissible. Objections must be received by WebG within one month of corresponding notification by the latter.
XVII. Incorporation of the General Terms and Conditions by the image copyright holder
The image copyright holders of the respective WebGs have accepted WebG's General Terms and Conditions.
XVIII. Information on right of revocation
RIGHT OF REVOCATION FOR CONSUMERS
A customer who is a consumer enjoys a right of revocation in accordance with the following statutory information on the conditions pertaining to and consequences of the right of revocation for consumers.
NOTIFICATION REGARDING REVOCATION
REVOCATION RIGHT
You have the right to revoke your contractual acceptance within 14 days without stating your reasons for doing so. The cancellation may be effected in writing (e.g. letter, fax, e-mail) or – should the item be sent to you prior to this period expiring – by returning the item. The period begins on receipt of this notification in written form, but not before the contract has been concluded or our information obligations have been fulfilled as per Article 246 Section 2 in conjunction with Section 1 (1) and (2) of the Introductory Act to the German Civil Code (EGBGB). Revocation shall be considered timely if the notice of revocation or the item is dispatched within the above period. The revocation should be addressed to:
WebG GmbH, Humboldtstraße 4, 40237 Düsseldorf, Germany, e-mail: info@webg.com, fax: 0049 (0)211 9150 150
CONSEQUENCES OF REVOCATION
In the event of a valid revocation, each party shall return to the other party the performance received including any derived benefits (e.g. interest). If you are unable to return part or all of the goods or services supplied or cannot return them in their original condition, you must compensate for the loss of value where applicable. This may mean that you nevertheless have to fulfil the contractual payment obligations for the period prior to revocation. When returning items, this shall not apply if the deterioration in the item’s condition is attributable solely to an examination of the item such as would have been possible in a shop, for example. To avoid having to pay compensation for loss of value caused by usage of an item, refrain from treating it as your own property and avoid anything that would impair its value. Items that can be shipped as parcels shall be returned at our risk. You must pay the cost of returning items if the goods supplied correspond to those ordered and if the price of the item to be returned does not exceed 40 euros. This shall also apply if the price of the item is higher but you have not yet paid any consideration or made a contractually agreed part payment at the time of cancellation. If neither of the above apply, you shall incur no return shipping costs. Items that cannot be shipped as parcels shall be collected from your address. Obligations to refund payments must be fulfilled within 30 days. This period begins for you when you send your notice of revocation or return the item; for us, the period begins upon receipt of the above. Your revocation right shall expire prematurely if both parties perform the contract in full at your explicit request before you exercise your revocation right.
END OF THE NOTIFICATION REGARDING REVOCATION
XIX. Separability clause
Should any individual provision of these General Terms and Conditions be or become partially or entirely invalid or should a loophole exist in these terms and conditions, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced or the established loophole filled by means of an appropriate provision which, within the bounds of the law, is most closely in keeping with what the contracting parties intended or with what they would have intended according to the purpose of these General Terms and Conditions, if they had considered the point concerned.
Please send any queries to info@webg.com. Information correct as per: March 2009
Copyright © 2009 WebG GmbH