Terms of Service

1. Provider, Scope of Application

(1) The provider and operator of the Platform is Photocase Addicts GmbH, Wissmannstrasse, 50823 Cologne, Germany (“PHOTOCASE”).

(2) The following General Terms of Use contain the basic rules and terms for use of the Platform and govern all legal transactions and acts of similar nature effected between the User and the Platform. The User’s general terms and conditions shall not apply in connection with use of the Platform. This shall still apply even if PHOTOCASE does not expressly object to the User’s general terms and conditions.

2. Definitions

“User” shall mean any individual person or legal entity or association of persons who uses the Platform or has registered with the Platform.

“Photographer” shall mean any User who posts a photograph on the Platform

“Downloader" shall mean any User who downloads at cost a photograph posted on the Platform

3. Registration/User Account/Contract Closure

(1) Use of the Platform, unless it is accessed for visiting purposes only, is contingent upon the User registering and setting up a user account with its personal data (“Access Data”).

(2) The User is under obligation to provide the data that is collected during registration both truthfully and in full. If subsequent to registration any of the data collected changes, the User must immediately update the particulars in its user account. The User must keep its Access Data secret and protect it from unauthorised third-party access. If the User mislays its Access Data, or if it discovers or suspects that its Access Data is being used by a third party, then it must immediately notify PHOTOCASE to this effect.

(3) Using PHOTOCASE is not permitted for minors and for other individuals who have no or only limited legal capacity.

4. Object of the Platform

PHOTOCASE is a stock photo agency, and it provides Users with a digital marketplace where rights of use in photographs can be acquired in accordance with the License Conditions for Photos. Photographers and rightsholders can offer their photos for licensing in accordance with the Upload Conditions.

5. Acquisition of Rights of Use

(1) On the Platform, photos are licensed in return for payment of a fee. All prices are gross and include any statutory value-added tax payable.

(2) For paying with Download Credit, the User can buy packages of Download Credits in the PHOTOCASE Download Credit Shop. Download Credits do not expire once purchased.

(3) If an external provider is used for handling payments, such as PayPal, the general terms and conditions of the respective payment service provider shall apply.

(4) For each purchase, PHOTOCASE shall issue the User with a proper invoice indicating any statutory VAT payable.

6. Inadmissible Content and Conduct

(1) The User is solely responsible for all and any content which it posts on the Platform. The User undertakes vis-à-vis PHOTOCASE not to post on PHOTOCASE any illegal content (such as e.g. the content of its user profile, forum postings and comments on photos), in particular content which

• (a) is of a defamatory or derogatory nature;
• (b) infringes another person’s right to protection of privacy or other personal rights, in particular the rights in their own image;
• (c) infringes other parties’ copyrights, ancillary copyrights, trademark rights or other intellectual property rights;
• (d) is liable to civil action or prosecution on other grounds.

PHOTOCASE reserves the right to delete content where applicable.

7. User’s Liability, Indemnification

If any claims are filed against PHOTOCASE by third parties, a downloader or a photographer as a result of a culpable violation of the User’s duty, the User shall fully indemnify PHOTOCASE on first demand from and against all and any liability and costs, including litigation costs and any compensation payable. 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.

8. PHOTOCASE’s Liability

Any claims by the User for damages or compensation for wasted expenditures shall be governed by this section, irrespective of the legal nature of the claim

PHOTOCASE shall bear unlimited liability for losses that result from mortal injury, physical harm or health damage, or that are based on a wilful or negligent breach of duty by PHOTOCASE. In relation to all other liability claims, PHOTOCASE shall only bear unlimited liability if a warranted characteristic is lacking, and for deliberate conduct and gross negligence

PHOTOCASE shall only be liable for slight negligence if a duty is breached, performance of which is a basic requirement for due implementation of the contract in the first place and may always be relied upon by the User, and which if breached may jeopardise attainment of the contractual purpose (cardinal duty). If a cardinal duty is breached, liability shall be limited to compensation for the loss or damage that is typical for the type of contract and foreseeable at the time of contract closure. This shall also apply for lost profits and for savings that fail to be realised. Liability for any other consequential losses ensuing from defects is excluded.

The foregoing provisions shall also apply for the benefit of PHOTOCASE’s employees, representatives and vicarious agents.

These provisions shall be without prejudice to liability under the Product Liability Act.

9. Term and Termination of the Agreement on Use

The agreement on use is concluded for an indefinite period. Both parties may at any time give routine notice with immediate effect.

In the event of a breach of these Terms of Use, PHOTOCASE may also as a more lenient measure temporarily inactivate the User’s account, in order to urge it to comply with its obligations. The User shall be notified in text form about any such inactivation of its account.

In the event of its 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.

10. Privacy Policy

Detailed information on data privacy and safety can be obtained from PHOTOCASE’s Privacy Policy.

11. Final Provisions

(1) PHOTOCASE reserves the right to make amendments to these General Terms of Use. Any such amendments shall be without prejudice to the cardinal duties to be discharged by the parties. The User shall be sent notification of the amended terms at least two (2) weeks before they come into effect. If the User does not object to application of the new terms within two (2) weeks of receiving such notification, the amended terms shall be deemed accepted. In the event of any amendment being made, PHOTOCASE shall specifically draw attention to the significance of the time limit, to the right to object and to the legal consequences of non-response.

(2) All and any amendments or supplements to the Terms of Use must be done in writing. The requirement for written form shall also apply for any cancellation of the requirement for written form itself.

(3) In the event of any conflict between these Terms of Use and the Photographer License Agreement or the Downloader License Agreement, the provisions of the Photographer License Agreement or Downloader License Agreement shall have priority.

(4) The User shall not be entitled to effect set-off against claims of PHOTOCASE, unless its own claims are undisputed or have been declared res judicata.

(5) The laws of the Federal Republic of Germany shall apply exclusively, excluding all international and supranational (contract) legislation, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). German shall be the language used for contract closure.

(6) If the User is a registered trader, a legal entity under public law or a special fund under public law, PHOTOCASE’s registered place of business shall be place of jurisdiction for all and any disputes arising from the contractual relationship. Place of performance shall be PHOTOCASE’s registered place of business.

(7) If individual provisions of these Terms of Use are or become invalid, this shall be without prejudice to the validity of the remaining provisions. The invalid provision shall then be replaced by a clause which approximates the parties’ business objective as nearly as possible. The same shall apply if there are any gaps in these Terms of Use.