Photocase - Prettying up the world.

General Terms of Use

Status: December 1, 2006

• 1. Operator and area of application
• 2. Definitions
• 3. Registration/user account/conclusion of contract
• 4. Uploading photographs
• 5. Downloading photographs
• 6. No set-off/right of retention
• 7. Revenues from non-gratuitous downloads
• 8. Rights of use regarding the placing of photographs on the PHOTOCASE platform
• 9. Rights of use regarding articles, interviews and photo contests
• 10. Grant of rights of use by the uploader to the downloader
• 11. Disclosing the authors and sources of photographs
• 12. Guarantee
• 13. Commentaries, contributions to online forums and user profile content
• 14. User's liability
• 15. Liability by PHOTOCASE
• 16. Availability
• 17. Term and termination of the contract of use and of the subscription
• 18. Data protection
• 19. Changes to the General Terms of Use
• 20. Applicable law

1. Operator and area of application

1.1 The following General Terms of Use contain the basic rules for the use of PHOTOCASE and for all legal and similar transactions - including future ones - between the user of this service and PHOTOCASE. They also apply to all future legal relations with the user even if they are not expressly restated.

1.2 Terms and conditions of the user are hereby declined to the extent that they contain provisions that deviate from or run counter to the following terms of use.

2. Definitions

• "User" is/are any natural or legal person or persons or association of persons registered with PHOTOCASE.
• "Photographer" is any user who places a photograph on PHOTOCASE.
• "Downloader" is any user who downloads a photograph placed on PHOTOCASE.

3. Registration/user account/conclusion of contract

3.1 The use of this service requires the user's registration with PHOTOCASE and the opening of a user account. The user is obligated to truthfully and completely state the particulars collected at registration. Whenever a piece of information collected changes after registration, the user shall immediately update his/her particulars on his/her user account.

3.2 When registering, the user shall select a user name and a password (hereinafter referred to as "access data"). Not allowed are user names whose use infringes third-party rights, notably rights to names or marks, or which are otherwise unlawful or contrary to morality. The user shall keep his/her access data secret and shall protect them from access by unauthorised third parties. If the user loses any access data or if he/she discovers or suspects that his/her access data are being used by a third party, he/she is obligated to promptly notify PHOTOCASE.

3.3 By transmitting his/her form of registration the user is making an offer for the conclusion of a user contract with PHOTOCASE.

3.4 PHOTOCASE reserves the right to refuse to register the user without stating the reasons.

3.5 Minors and other natural persons of no or restricted legal capacity are not allowed to use PHOTOCASE.

3.6 If PHOTOCASE accepts the registration, this is confirmed to the user by an email complete with transmission of a link and an enabling key. The email also contains a summary of the user's key data. Receipt of the confirming email by the user gives rise to a contract of use between him/her and PHOTOCASE.

4. Uploading photographs

4.1 Before uploading a photograph, the user confirms that he/she holds the rights required for the upload, for permitting other users to download the photograph and for the later use of the photograph by other users for other purposes as provided in these General Terms of Use.

4.2 In case of a first-time upload by a user on PHOTOCASE, he/she is required to give his/her correct and full name and his correct and full address before finalising the uploading procedure.

4.3 PHOTOCASE reserves the right to reject or delete such photographs as do not conform to the substantive and formal criteria of PHOTOCASE. The Photographer has no claim to the placing of a photograph on PHOTOCASE or its continued presence there.

5. Downloading photographs

5.1 The use of PHOTOCASE is, as a matter of principle, free of charge. Restrictions apply, subject to the following provisions, only to the downloading of photographs.

5.2 For downloading photographs the user needs to obtain download credits from PHOTOCASE. Each such credit entitles to the downloading of one photograph. The credits can be acquired in various ways.

5.3 For the settlement of payments due for the non-gratuitous download credits PHOTOCASE uses certificated online payment systems. Their providers take charge, in the name and by order of PHOTOCASE, of the settlement of payments, i.e. the collection of receivables. However, PHOTOCASE remains holder of the receivables, reserving the right to enforce payment on its own.

6. No set-off/right of retention

The user is not entitled to set-off except where the counter claims are not contested by PHOTOCASE or have been non-appealably established. The same shall apply accordingly to the assertion of rights of retention which, in addition, must originate from the same contractual relationship.

7. Revenues from non-gratuitous downloads

7.1 Where a photograph has been downloaded by use of a download credit acquired against payment, PHOTOCASE shall remit to the Photographer 60% of the amount attributable to the download of the given photograph. The remaining amount shall be used by PHOTOCASE to cover the costs associated with the operation of PHOTOCASE.

7.2 PHOTOCASE shall promptly credit the user account with the respective amount obtained from the download of the given photograph as soon as it has received the amount payable by the downloader. The user may at any time inspect his/her account balance within his/her personal area at PHOTOCASE.

7.3 PHOTOCASE shall disburse the credit balance as soon as it has reached EUR 100.00. Alternatively, the credit balance may in an individual case be disbursed at the user's express request at the month's end, not, however, if the credit balance is less than EUR 10.00. Disbursement is made by remittance to the bank account designated by the user.

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

8.1 The photographer grants PHOTOCASE non-exclusive rights of use, unlimited in space and time, to the extent and scope required for the operation of the service. In particular, the upholder shall entitle PHOTOCASE to place the given photograph on its platform and to make the required number of reproductions. Moreover, the user shall grant PHOTOCASE the right to make the photograph available to the public.

8.2 PHOTOCASE and the photographer interpret the right of making the photograph available to the public to also include in particular the right to transmit photographs of the photographer to the computers of other users or to other terminals - including mobile ones - per RSS Feed and XML interface.

8.3 The photographer may not claim any remuneration for the granting of the rights of use listed in sub-paragraphs 8.1. and 8.2 over and above the download credits (sub-para. 5.2.2).

9. Rights of use regarding articles, interviews and photo contests

9.1 Users may offer PHOTOCASE articles around the subject of photography which, if accepted by PHOTOCASE, will be published in its online magazine area. Moreover, PHOTOCASE shall from time to time produce interviews with users which will also be published on its platform.

9.2. Moreover, PHOTOCASE will, from time to time, stage photo contests for which users may submit photographs. For this purpose, the user shall upload the photograph with the proviso that it shall become accessible only to a panel of judges selected by PHOTOCASE. The panel shall select the best three entries. The prize-winning photographs are made publicly accessible in the Contest Area. After the contest, users who uploaded photographs for that purpose are given the opportunity to upload their photographs in the usual manner onto the PHOTOCASE platform.

9.3 For the purposes named in sub-paras. 9.1. and 9.2. the user shall grant PHOTOCASE the required non-exclusive rights of use, unlimited in time and space, and other rights to his/her contributions.

10. Grant of rights of use by the photographer to the downloader

10.1 The granting of rights of use to the downloader shall in every case be made directly by the photographer. In this regard, PHOTOCASE merely takes up the position of an intermediary who transports the declaration of offer embodied in the uploading operation and the placing of the photograph on PHOTOCASE by providing the technical platform. By starting the downloading procedure a user downloading a photograph accepts photographer’s offer for the granting of the following rights of use.

10.2 By uploading a photograph and placing it on PHOTOCASE the photographer offers every user non-exclusive rights of use entitling each of them to download the photograph, i.e. to store it and use it in his/her private sphere as well as for commercial and non-commercial purposes as a component of "new independent graphic works of its own" or within "an editorial context". Independent graphic works for the above purpose are new works created by the downloader and integrating the subject photograph such as collages, Internet pages, print products and advertising media with the exception of those named in sub-para. 10.3. "Editorial context" means use of the photograph for editorially designed, journalistically processed printed or online articles, i.e. text-based publications using the photograph to explain, illustrate, comment on or graphically design the text. The mere passing on of a photograph to a third party is not permitted.

10.3 From the very outset not comprised of the grant of such rights of use is the use of a photograph for and within works which cannot be interpreted as being "independent graphic works" or being "within an editorial context" within the meaning of sub-para. 10.2. This includes in particular products showing only or primarily the photograph, i.e. on which the photograph appears out of any graphic context such as in combination with writing or other graphic elements. This applies in particular to photo data bases, photo catalogues and similar collections as well as to the use of photographs for commercial purposes on posters, postcards, articles of clothing, mouse pads or similar objects.

10.4 For the creation of "independent graphic works" or for use within "an editorial context" within the meaning of sub-paras. 10.2. and 10.3., the downloader may modify, edit or rearrange the photograph, taking account of sub-para. 10.5. The downloader is entitled to fully exploit the work thus created by him/her by reproducing and disseminating it, making it publicly available and using it in the context of other actions. For this purpose the photographer grants him/her the required non-exclusive, transferable rights of use to the photograph, unlimited in time and space.

10.5 Changes made to the photograph in the context of its use within an "independent graphic work" within the meaning of sub-paras. 10.2 and 10.3 must not impair the author's intellectual and personal interests. In case of doubt, the downloader is required to first establish contact about the issue with the photographer via the Community Area of PHOTOCASE. Such doubts are particularly called for in the context of offensive, defamatory and pornographic contents.

11. Disclosing the authors and sources of photographs

When using a photograph the downloader is required to disclose where technically feasible the name – or, where this is not possible, the PHOTOCASE user name complete with a reference to the PHOTOCASE website – of the photographer as author of the photograph in the form usual for the given type of use in the imprint or by the image. In online offers reference to PHOTOCASE is required as the pertinent link to the PHOTOCASE website.

12. Guarantee

12.1 The user warrants to PHOTOCASE that he/she is entitled and able to transfer the rights within the scope defined by sub-paras. 8, 9 and 10.

12.2 The user undertakes vis-à-vis PHOTOCASE to refrain from uploading onto PHOTOCASE any unlawful images, in particular no pictures which

• are slanderous or defamatory in nature;
• infringe the right of others to protection of privacy or other personal rights;
• contain pornographic, obscene or disparaging materials;
• infringe the copyrights, ancillary copyrights or trademark rights of others;
• are liable to civil or criminal prosecution on other grounds.

The same applies to articles of the user that are or are to be published in the magazine area of PHOTOCASE.

12.3 PHOTOCASE reserves the right to cancel photographs and contributions of the user from its platform.

13. Commentaries, contributions to online forums and user profile content

The user undertakes to refrain from placing any illegal contributions or user profile content on PHOTOCASE. The term "illegal" particularly applies to such contributions and user profile content as meet the criteria set forth in sub-para. 12.2. PHOTOCASE reserves the right to cancel contributions and user profile content.

14. User's liability

14.1 The user, in particular a photographer is solely responsible for all granting of rights of use, as well as for his/her contributions and user profile content.

14.2 Where recourse is had to PHOTOCASE by a third party on account of a culpable infringement user, in particular a photographer, of his/her obligations in the context of rights of use granted, the photographer shall indemnify PHOTOCASE in full and at first request against any liability and costs including costs of proceedings, if any. The same shall apply where recourse is had to a downloader by a third party on account of an infringement by the uploader of his/her obligations towards the former as regards the granting of rights of use. PHOTOCASE shall promptly notify the user of such recourse, affording him/her, to the extent legally necessary and/or feasible, the opportunity to ward off the claim asserted.

14.3 Number 14.2 shall apply correspondingly to any recourse by another user and/or third parties claiming that the subject of a photograph, regardless of its authorship, infringes legal positions of third parties, notably copyrighted rights of exploitation or personal rights as well as to the infringement of other third party rights (in particular personal rights) by the contributions of the user and contents of their user profile.

15. Liability by PHOTOCASE

PHOTOCASE shall be liable pursuant to the statutory provisions subject to the following limitations: Where the registered user is injured by the loss of data, PHOTOCASE shall not be liable therefor if and to the extent that the damage could have been avoided if the user had secured all relevant data regularly and completely. Where the damage sustained does not affect a person's life, body or health, PHOTOCASE shall not be liable to the extent that the damage is atypical for the respective type of contract or unforeseeable.

16. Availability

16.1 The availability of the servers and data paths up to the point of transfer to the Internet (backbone) shall at least average 99 per cent per medium month minus the periods required for maintenance works. PHOTOCASE draws the attention of users to the fact that the services offered may be restricted or impaired for reasons beyond its control. These in particular include measures by third parties not acting on instructions from PHOTOCASE, technical conditions of the Internet beyond the control of PHOTOCASE and force majeure. Moreover, the hardware and software as well as the technical infrastructure of the users (e.g. their DSL connections) may impact the performances of PHOTOCASE. To the extent that such circumstances have an impact on the availability or proper functioning of the services provided by PHOTOCASE, the conformity of the latter's services with the given contract shall not be deemed affected thereby.

16.2 PHOTOCASE shall perform maintenance works at regular intervals on its systems to keep them operational, maintain its services and their inter-operability and ensure data protection. For this purpose, PHOTOCASE may temporarily discontinue or restrict its services to the extent that this is justified by objective grounds. In so doing it shall take account of the interests of its users. Maintenance works shall be performed to the extent feasible during off-peak hours, especially on weekends. Should it become necessary to temporarily discontinue or restrict services for longer periods, PHOTOCASE shall notify users in advance of the nature, scope and duration of the impairment to the extent that this is objectively possible in the given circumstances and that such notification would not delay the elimination of interruptions that have already oc-curred.

17. Term and termination of the contract of use and of the subscription

17.1 Contracts of use are concluded for an indefinite period. They may be regularly terminated by either side at any time. Both PHOTOCASE and the user reserve the right to immediate termination in exceptional cases. Immediate exceptional termination by PHOTOCASE is possible in particular in case of infringements of the present terms of use, notably of the obligation to truthfully disclose the required personal data as well as for other good cause, in particular in case of loss of the access data or suspicion of their misuse by a third party. The textual form shall be required in each case of termination of the contract of use.

17.2 Where the user infringes these terms of use, PHOTOCASE shall be free to resort to the less stringent measure of imposing a temporary ban so as to impress the need for the observance of the pertinent obligations. Any such ban shall be communicated to the user in textual form.

17.3 Where a user account is blocked or where PHOTOCASE terminates the contract for good cause, the affected user shall not be permitted, pending the express prior consent of PHOTOCASE, to re-register with PHOTOCASE or open a new user account.

17.4 As soon as termination takes effect, PHOTOCASE shall cancel the user account of the registered user and all of his/her photographs placed on PHOTOCASE. PHOTOCASE shall refund, on a pro rata basis, any contributions already made for non-gratuitous download credits.

17.5 Credit balances of registered users shall be settled at the point in time when the termination takes effect. Existing credit balances shall be disbursed to the registered user regardless of the given amount 14 days after termination of the contract of use.

17.6 A download subscription has a minimum term of three months after which it may be regularly terminated at any time subject to 10 days' notice to the end of the month. Subscriptions need to be terminated in writing.

18. Data protection

Details about the protection and security of data are provided in the data protection declaration of PHOTOCASE.

19. Changes to the General Terms of Use

PHOTOCASE reserves the right to change the present General Terms of Use at any time. Such changes or any new General Terms of Use are communicated to the registered user in the context of his/her log-in on a separate Internet page. A registered user is given 14 days' time to consider whether he/she will accept the new General Terms of Use or pertinent changes. During that period the user is free to continue using PHOTOCASE subject to the present General Terms of Use. If a user opts against the proposed changes to the old General Terms of Use or to the new General Terms of Use, PHOTOCASE shall be free to make use of its right to regular termination. PHOTOCASE shall separately draw the attention of its registered users on to the a/m period of reflection, the pertinent deadline and the reservation of regular termination the corresponding Internet page.

20. Applicable law

The contractual relationship between PHOTOCASE and the registered user and the present General Terms of Use shall exclusively be governed by the law of the Federal Republic of Germany.

© Copyright 2006 Photocase. All rights reserved.

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