General Business Terms for business customers for using the services of LemonOneGmbH
1. Definitions
“Material” in the context of this Agreement (as defined below) means the photographs and/or videos to be transferred to the customer under the conditions of the Cooperation Contract, i.e. only the photographs/videos pre-selected (or edited, if applicable) by the contractor in the minimum number owed. “Raw Material” in the context of this Agreement (as defined below) means all photographs and/or videos created during a shoot as well as any other files created in connection with the shoot or image processing, if applicable, which are not Material. “Agreement” in the context of these General Business Terms means the individual agreement in the form of a Cooperation Contract inclusive of the following General Business Conditions.
2. Preamble
With this Agreement regarding the creation of photographs and/or videos and the concession of usage rights for this Material, the contractor is granted the right to use the Material on the basis of the license type chosen in the Cooperation Contract for the agreement purpose stipulated in the Cooperation Contract.
3. Object of the contract, framework agreement
The object of this Agreement is the making of and granting of rights to the Material prepared by the contractor for the client.
The Cooperation Contract as a framework agreement obliges the parties to carry out multiple film shoots, each representing individual service contracts (hereafter each referred to as “Order”). If not referred to differently in the following clauses, this refers to every individual order.
4. Application of the General Business Terms
These General Business Terms also apply to future agreements as amended. They also apply if the client refers to its own business terms, particularly in the case of offer acceptance or order confirmation, unless agreed in writing by the contractor.
5. Obligations of the contractor
The contractor undertakes to produce the contractual Material in accordance with the specifications in the Cooperation Contract. The contractor may engage subcontractors for this purpose. For every Order, the time and place of a shoot will be stipulated by the parties by mutual agreement in the manner laid out in the Cooperation Contract. The client may refuse to grant approval if the Material does not meet the contractual requirements.
After completion of the Material, the contractor must convey the Material to the client. The contractor has no obligation to deliver or transfer the Raw Material. The client may retain copies of the Material to use as a reference for its client acquisition..
6. Processing
Insofar as digital processing is included in the Cooperation Contract, the client must carry this out in accordance with the specifications agreed upon in the briefing before the conclusion of the contract.
7. Granting of rights
The contractor confers on the client, within scope of the legal protection period, the locally unrestricted right to tangible and intangible use of the Material. All rights are granted as exclusive rights, i.e. for sole use by the client. An exception is made for the entitlement of the contractor and its subcontractor to use the Material as reference for its own client acquisition purposes.
In the case of “one-off payment”, this right is conveyed without a time limit whereas in the case of “annual payment”, the right has time limitations in accordance with Sections 10.2 and 12.2.
The right conferred by Section 7.1 is limited in its contents in accordance with the license model stipulated in the Cooperation Contract as follows:
(a) Full license option
The client may use the Material in an unrestricted manner, in particular for any kind of advertising (print, online, indoor and home displays, TV, videos, on- demand) as well as for product packaging.
The granting of usage rights includes reproduction rights, distribution rights and the right to exhibit (tangible exploitation rights), the right of recitation, performance and presentation, the right to make publicly available (particularly on the internet), the right to broadcast, the right to reproduce via image and sound media and the reproduction rights of radio transmissions and of occasions when the Material was made available to the public (intangible exploitation rights) as well as all unknown types of use.
In particular (not conclusively, however), the granting of usage rights includes, in view of the usage intended by the client, the following rights and intended uses:
(i) the unlimited right to use the Materials in books, documentation, advertising efforts, canvassing for advertisers (incl. posters), brochures and catalogues, for all print and digital output without a limitation on numbers both domestically and abroad;
(ii) the unlimited right to share the Material, in the context of press and public relations activity, to third parties for publication, reproduction and distribution;
(iii) the unlimited right to present the Materials within the context of exhibitions and events, in both digital and analogue form
(iv) the unlimited right to commercial exploitation of content through the production and sale of wares of any kind (e.g. clothing, print publications);
(v) the unlimited right to make publicly available, preproduce and distribute the Material within a website or as part of any other internet service (e.g. making it available to download);
(vi) the unlimited right to reproduce and distribute the Material on all known and future storage media (e.g. DVD, Blu-Ray or other HD disks, flash memory cards, memory sticks, other chips);
(vii) the unlimited right to archive the Material in any form (including in an electronic database with other photographs and texts) and particularly to record in a digital form and save on any known and future storage media or data carrier together with other works or partial works, to reproduce, rent and/or distribute these data carriers in any form as well as making the contents publicly available and transferring it via stationary or mobile media as part of a remote data transfer (e.g. on-demand, with or without download), as well as allowing printouts of paper copies by the respective end customers. (b) Web license option
The client may use the Material in a restricted manner on the World Wide Web in any form (most notably on any website or as a web- based, digital advertisement). This excludes advertisements using other media (TV and videos, usage on packaging);
publications, limited to 5000 copies, and
presentations (in-house and public).
(c) Social media license option
The client may use the Material on social media platforms, i.e. via online communication channels that are based on community-based input, interaction, content sharing and collaboration, such as Facebook, Twitter, Instagram, Google+ and Tumblr.
(d) Editorial license
The contractor may only use the Material for public relations activities, i.e. for reporting on proceedings that are worthy of publication or are generally in the public interest; via all media (particularly digital newspapers, magazines, newsletters, websites, blogs or other publications).
7.4 The client has the right to exploit the rights granted in this Agreement free of charge or in exchange for a fee.
7.5 The client may only transfer or sub-license all or part of the rights granted in this Agreement to third parties without requiring the approval of the licensor if the full license option has been selected.
7.6 The usage rights of the files are granted at the moment of the handover/transfer of the files to the client. The contractor is not entitled to use the deliverables itself – with the exception of Section 5.2 of this Agreement.
7.7 The client accepts this transfer of rights.
7.8 The rights to the Raw Material is not granted.
8. Right to edit/Crediting the author
The client obtains – for the duration of the license – the right to edit and adapt the Material to the respective intended use (such as retouching, colour-editing and resolution changes). The client is also granted the right to digitally alter the footage and extract sections. The rights to the Raw Material is not granted. 8.2 The client thus respects the moral rights of the subcontractor (photographer or cameraman) in accordance with Section 14 of the German Copyright Act (UrhG). 8.3 The contractor undertakes to agree with its subcontractor that it will waive the right to credit in accordance with the Copyright Act, as long as this is legally admissible.
9 Other permissions and consent
The client will, under its own responsibility, obtain from third parties the permissions/consent necessary to create the Material. Notably, the contractor will, if legally required,
(a) obtain consent from individuals who are personally recognisable in the Material;
(b) obtain consent from individuals in whose home the Material was recorded;
(c) obtain official authorisation;
(d) obtain consent from individuals whose intellectual property rights are affected by the recording of the Material.
(e) obtain consent from individuals insofar as this is required for the processing of their personal data.
The client thereby respects the legal regulations that apply to obtaining consent and permissions agreed in accordance with Section 9.1, in particular the German Copyright Act, the Design Act, the Federal Data Protection Act, the Art Copyright Act and the General Data Protection Regulation.
9.3 Should third parties make claims against the contractor based on a culpable breach of Section 9.1 or 9.2 of this Agreement by the client, the client indemnifies the contractor against all these claims.
9.4 The client grants, insofar as it is authorised, the permissions and consents necessary for the fulfilment of the Agreement. If the client can only participate in granting permissions or consent, it is obliged to do so in good faith.
10. Remuneration
One-off payment option. If the client has chosen the “one-off payment” option, the contractor receives (a) the remuneration (plus VAT) agreed in the Cooperation Contract for carrying out the shoot and producing the Material for each Order, and (b) a one-off flat fee in accordance with the Cooperation Contract (plus VAT) for the permanent usage rights of the Material created for the Order. 10.2 Annual payment option. If the client has chosen the “annual payment” option, the contractor receives the one-off payment (plus VAT) stipulated in the Cooperation
Contract for the production of the Material and for carrying out each individual Order. In addition, the client pays an annual license fee (per calendar year) for usage rights of the Material delivered as part of each Order, at an amount agreed upon in the Cooperation Contract plus VAT. For the first year, in which the shoot took place, the client is only liable for the pro rata amount.
Any Material costs, travel and subsistence expenses, or any other costs that may arise in connection with the shoot and the creation of the Material, as well as for the granting of usage rights, are to be compensated along with the flat fees in accordance with Sections 10.1 and 10.2 respectively. This does not apply to the remuneration of unknown usage types in accordance with Section 31a in connection with 32c of the Copyright Act, which provides for separate remuneration for unknown usage types.
Remuneration is payable after the transmission/uploading of Materials to the client by the contractor and the issuing of an invoice by the contractor.
11. Non-solicitation agreement
For the duration of the Cooperation Contract and for a period of one year after its end, the client undertakes not to enter into any agreements with the subcontractors of the contractor regarding the provision of services or working relationships involving photography or video production.
12. Rescheduling and Cancellation Rights
Both parties have a right to ordinary termination of the Cooperation Contract as a framework agreement after the minimum number of shoots stipulated in the Cooperation Contract have been completed. The right of termination can be exercised with immediate effect.
If the “annual payment” option has been selected in accordance with 10.2, both parties may terminate the right of use obtained via annual license fees with a deadline of one month before the end of the calendar year. All obligations relating to carrying out shoots and the creation of Material, as well as the one-off payment due for this, remain unaffected.
The client may reschedule or cancel individual orders without payment, provided that the cancellation takes place more than 72 hours before the start of the arranged shoot. In the case of a cancellation that takes place 72 hours or fewer but more than 12 hours before the start of the arranged shoot, the client is liable for half of the agreed payment for this individual shoot. In the case of a cancellation that takes place 12 hours or fewer before the start of the arranged shoot, the client is liable for all of the agreed payment for this individual shoot.
No other ordinary termination rights exist if they are not otherwise stipulated in the Cooperation Contract.
The parties are accorded a right to extraordinary termination in accordance with legal regulations.
Notably, there is a particular reason for cancellation by the contractor if the permissions and consent necessary for the order specification in accordance with Section 9 of this Agreement cannot be obtained by the client after sincere effort. In this case, the contractor will inform the client in advance to allow for a potential alteration of the project.
13. Cancellation/Termination rights
The parties undertake – for the duration of the Cooperation Contract and for a period of one year after its end – not to divulge any information obtained while carrying out the Cooperation Contract and which relates to confidential business affairs or transactions of the company or business entities linked to the company, and only to use this kind of information for the purposes of this Agreement. This particularly applies to trade secrets, confidential data, information and expertise regarding products and processes. The obligation particularly relates to all non-public information about industrial property and intellectual property rights, software and/or hardware, new products from the company and its business partners that have not yet been made public, finances, business development strategies and plans, as well as names of current and potential customers and business partners.
The obligation in Section 13.1 does not apply to information that
(a) is or will be generally known without a breach of this Agreement or
(b) is made known to third party recipients without confidentiality requirements or violation of this Agreement or
(c) the recipients of the information can prove they already possessed or independently acquired or developed before the Agreement came into force or
(d) has been approved for disclosure by the company, in writing, or
(e) must be made public due to the law or regulatory action.
14. Final clauses and disclosure requirements
Agreements made in the Cooperation Contract that differ from these General Business Terms take precedence.
Changes to this Agreement must take place in written or text form; this also applies to changes to the written/text form requirement.
If individual provisions in this Agreement are or become partly or entirely unworkable, the validity of the rest of the Agreement remains unaffected. Such provisions are to be replaced by the remaining regulations as far as possible by applying supplementary interpretation, or otherwise replaced consensually by the parties with regulations that are most suitable for achieving the aims of the Agreement, taking into account the interests at hand and common requirements for creating regulations that are legally effective.
The Agreement is based on the law of the Federal Republic of Germany.
The place of fulfilment is the headquarters of the contractor. Any disputes that may arise from this Agreement will be settled by the local or regional court in Berlin, provided that no other court of jurisdiction is stipulated by law.
To ensure that the contractor can fulfil its legal requirements towards the client regarding information and disclosure in a timely and complete manner, the client will immediately, without solicitation, inform the contractor of any changes of address via registered letter.
