Terms of Business to the Framework Agreement regarding the creation of visual materials with photographers

The following Terms of Business supplement the Framework Agreement regarding the creation of visual materials for LemonOne GmbH (hereafter collectively: “Framework Agreement”) and apply to all of Contractor’s activities under the Framework Agreement. Any Terms of Contractor which deviate from or supplement these Terms of Business do not form part of the Agreement, unless their application is expressly agreed to in writing.

1. Definitions

1. “ Booking ” means an individually concluded contract between the parties regarding the production of, and granting of rights in, photographs and/or videos in a shoot, irrespective of whether it is concluded verbally or in writing.
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2. “ Clients ” means all of LemonOne’s contractual partners for whom LemonOne is tasked with producing photographic or video materials or who license visual materials through LemonOne.
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3. “ Visual materials ” means all image and/or video data produced in the scope of a Booking, in particular the associated raw data produced and all files created from or arising from that raw data.
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2. Contractor’s obligations

1. Contractor is obliged to provide the information, documents and technical infrastructure (e.g. Google account to enable use of the calendar system) as required for the commissioning of Bookings in the scope of this Framework Agreement, as well as the coordination of Bookings and availability. The required information, documents and technical infrastructure will be communicated to the Contractor by LemonOne and may change in the course of the contractual relationship, e.g. if the system to manage Bookings and availability is modified. Contractor is responsible for the accuracy and completeness of the information provided to LemonOne and will inform LemonOne without undue delay of any relevant changes to that information.
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2. In the event of Contractor being commissioned, Contractor is obliged to carry out the Booking professionally and according to the relevant contractual requirements. LemonOne’s Clients expect a standardised service according to the specifications and references provided by LemonOne. In light of this, Contractor undertakes to provide LemonOne with visual materials which fully conform to the precise specifications set out in this Framework Agreement, especially as stated in Annex 1 to these Terms of Business, and in the respective Booking and which do not have any personal touches added, either in the composition or in the choice of framing or lighting, whereby this list is not exhaustive. Contractor has no creative design freedom in the selection of and adherence to these parameters.
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3. Contractor is obliged to appear at the agreed location of the shoot, at the agreed time, as per the details set out in the Booking and/or any individual arrangements. In the event of any delay, the Contractor must inform LemonOne immediately. Direct communication with the Client is only allowed if this is explicitly requested in the Booking.
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4. Contractor bears sole responsibility for obtaining the equipment necessary to produce the visual materials according to the requirements set forth in this Framework Agreement and the respective Booking and for transporting it to the shoot location in full working order.
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5. Contractor undertakes to inform LemonOne of any and all problems which could occur or actually do occur while carrying out the Booking and in a broader sense of any difficulties which arise while carrying out the Booking.
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3. Compliance with legal requirements

1. Contractor is obliged to ensure they comply with all statutory rules and regulations applicable to their activities. This includes, in particular, to tax and residence rules, social security obligations, insurance obligations and commercial law regulations applicable to contractors.
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2. Contractor undertakes to provide LemonOne, upon first request, all information and documents required to prove compliance with the applicable statutory requirements or to execute the Booking. To the extent this includes personal data, this will be stored and used exclusively in accordance with the data protection law provisions on the basis of Art. 6(1)(b) of the GDPR, and shall be deleted once the relevant purpose no longer exists, unless a legal obligation to retain such data exists. This concerns, in particular, the following information and documents:
   - Contractor’s home address
   - Contractor’s date of birth
   - Contractor’s bank details
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3. Where flying drones are to be used in the scope of a Booking, Contractor bears sole responsibility for compliance with any statutory provisions for the use of drones, including obtaining insurance, making any necessary notification and/or obtaining official permission/licences in good time.
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4. Non-solicitation

1. Contractor undertakes, for the term of the Framework Agreement and for one year following termination of the Framework Agreement, not to contact LemonOne’s Clients for whom Contractor has created visual materials under a Booking via LemonOne, either directly or in any other manner, bypassing LemonOne, with the active objective of forming a working relationship in the field of photography.
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2. Clients, with whom Contractor has come into contact through LemonOne and who contact Contractor directly during the term of the Framework Agreement regarding a Booking, in particular to negotiate prices, must be referred to LemonOne.
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3. The above paragraphs do not apply to Clients for whom Contractor had already worked prior to working with LemonOne.
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5. Defects

1. LemonOne may refuse to accept visual materials that do not meet the specifications of this Framework Agreement or the respective Booking. This applies in particular if the visual materials are incomplete or Contractor has not provided it in the format as set out in Section 2.7. In such an event, remuneration is not due until visual materials free of defects have been supplied.
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2. To the extent required to meet the purpose of the contractual agreement, LemonOne may insist that the shoot or the upload be repeated free of charge. LemonOne shall inform the Contractor as to the date and time of the new appointment for the Booking, depending on the availability of the Client. There shall be no right to refuse acceptance to the extent that LemonOne or the Client is responsible for the defective nature of the visual materials.
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3. Moreover, the statutory rights regarding defects under Sec. 633 et seqq. BGB [German Civil Code] apply.
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6. Granting of rights

1. In order to achieve the commercial purposes set out in the preamble, Contractor grants LemonOne comprehensive, exclusive and sublicensable, perpetual, worldwide rights, with no restrictions as to content, in the visual materials produced, for all known and unknown types of use, including the right to edit the materials.
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2. Irrespective of the specific purpose of a given Booking, Contractor grants LemonOne the exclusive right, unrestricted in terms of content, worldwide and in perpetuity, freely sublicensable and freely transferable to comprehensively use and exploit the supplied visual materials, including the right to reproduce (Sec. 16 UrhG [German Copyright Act]), distribute (Sec. 17 UrhG), communicate to the public in any form (Sec. 15(2) UrhG), make available to the public (Sec. 19a UrhG), broadcast (Sec. 20 UrhG), exhibit (Sec. 18 UrhG), communicate by way of audio-visual storage medium (Sec. 21 UrhG) and edit (Sec. 23 UrhG) as well as the ownership of the supplied visual materials and, where applicable, the data storage media on which the visual materials are delivered to LemonOne.
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3. Contractor grants LemonOne the following rights, in particular:
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   a) the right to distribute, publish, communicate to the public, make available to the public, broadcast as well as to reproduce and edit, in full or editorially selected extracts or to illustrate editorial content or in any other commercial or non-commercial manner in any issues and any quantities (print and digital (electronic publishing) - e.g. newspapers/magazines, books, apps, e-books, e-papers, social media platforms, other websites) and to use modified versions in the same way;
   
   b) the right to distribute, publish, communicate to the public, make available to the public, broadcast and reproduce as well as to edit the visual materials for commercial purposes, in any form and on any media, and to use modified versions in the same way, in particular to use the visual materials to that extent in full or extracts thereof for press releases and advertising messages (print and digital (electronic publishing)), advertising and scientific presentations, on websites, social media platforms, in advertising videos or other advertising media and to make the visual materials available to third parties for this purpose or for own use in an editorial context.
   
   c) the right to use the visual materials or extracts thereof also in connection with works of other rightholders, and to edit the visual materials, to reconfigure it in any other manner or arrange for this to be carried out by third parties and to use the modified visual materials to the extent set forth in this section and to distribute them, make them available to the public and communicate them to the public on any media and data storage medium.
   
   d) the right to store, process and archive the visual materials in modified or unmodified form in electronic systems (e.g. collections/databases) or to arrange for this to be performed by a third party as well as to allow third parties to access the visual materials and use it in any form and for any purpose for payment or free of charge (e.g. online services, image databases);
   
   e) the right to make the visual materials, in modified or unmodified form, available to the public, in full or in part for retrieval on demand (Sec. 19a UrhG);
   
   f) the right to make the visual materials perceivable by the public in modified or unmodified form by means of audio or audiovisual storage medium;
   
   g) the right to exhibit the visual materials and make them perceivable to the public in modified or unmodified form in the scope of exhibitions and events, both in digital and analogue formats;
   
   h) the right to use the visual materials in modified or unmodified form for commercial exploitation through the production and distribution of goods of all kinds (e.g. articles of clothing, printed matter, book covers, CD covers);
   
   i) the right to transfer the aforementioned exploitation rights in full or in part to any third parties or to grant such third parties exploitation rights in the form of a sublicense, without requiring Contractor’s authorisation to do so.
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4. Moreover, Contractor grants LemonOne the right to use the visual materials to the extent set out above, for types of use unknown at the time of conclusion of the agreement.
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5. The above granting of rights shall, to the extent permitted under law, be exclusive, in light of the interests of LemonOne’s Clients as set out above. Contractor retains the right to use the visual materials for reference purposes, provided such a reference is not explicitly excluded in relation to the respective Booking. In this regard, Contractor must observe any restrictions arising from a confidentiality agreement in Section 9, in particular in relation to unreleased products.
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6. The granting of rights occurs at the time the visual materials are created.
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7. Credits

1. Contractor hereby waives their right to be duly credited when the visual materials are used by LemonOne and/or their Clients and/or their licensees. Contractor thus consents to the visual materials being marked with a copyright notice in favour of LemonOne (e.g. © LemonOne). There is no obligation to attach a copyright notice in this regard.
   
   

8.  Payment terms

1. Payments will be made in euros. Any currency exchange rate losses, costs and fees resulting from the Contractor not having a euro account will be borne by Contractor. All prices are exclusive of any applicable VAT.
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2. After fulfilling a Booking, Contractor will submit, in separate lists, their project deliverables as well as their travel costs, via email to LemonOne’s accounts payable department (invoices@lemonone.com).
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3. The parties shall agree, under a separate agreement, that Contractor’s services shall be invoiced by way of self-billing, taking into account the travel costs, unless otherwise agreed on an individual basis.
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9. Protection of Client’s privacy, confidentiality

1. Contractor will, in many cases, carry out their Bookings at private or non-public locations, on Clients’ premises or in private facilities.
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2. In view of the private nature of the photographed material, Contractor undertakes not to use the visual materials produced in the scope of such Bookings, modify them, reproduce them or make them available to the public, for Contractor’s own purposes, unless there is prior written consent from LemonOne and the Client concerned.
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3. To the extent Contractor produces visual materials in which people can be recognised, Contractor is obliged to make the data policy provided by LemonOne available to the persons depicted and to obtain from such persons, by means of the app provided by LemonOne, consent to publish the visual materials.
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4. Contractor undertakes - for the term of the Framework Agreement and for one year following its termination - to maintain secrecy regarding all information that they have received in the course of performing the Framework Agreement and all Bookings, where the information contains trade secrets or other confidential information from (a) LemonOne, (b) LemonOne’s Client or (c) the company on whose premises a shoot takes place, and to use information of that nature only for the purposes of this Agreement.
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5. A trade secret is a piece of information which is not generally known or readily available, either generally or in the precise configuration and composition of its components, to persons in the circles this type of information is usually circulated among and is therefore of commercial value and in relation to which there is a legitimate interest in confidentiality. This generally includes, in particular, all non-public information regarding objects and content covered by an industrial property right or copyright, software and/or hardware used, new, as yet unreleased products as well as financial information, business development strategies and plans, and names of current and potential clients and business partners, and the addresses of any properties on which an Booking may be based. The definition of trade secrets also explicitly covers the Booking related specifications LemonOne gives to Contractor for the execution of the Booking in accordance with Annex A or in special instructions.
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6. 
   The above obligation shall not apply in respect of information
   • which is or becomes generally known without any breach of this Agreement;
   • which is disclosed to Contractor by a third party not bound by confidentiality provisions and without any breach of this Agreement;
   • which the recipient of the information can prove to have possessed prior to this Agreement coming into force or to have acquired or developed independently;
   • the disclosure of which has been authorised in writing by LemonOne or
   • which has to be disclosed by law or due to an order from a public authority;
   • which was obtained by observing, examining, deconstructing or testing a product or object which has been made publicly available or is in the legal possession of the party carrying out the observation, examination, deconstruction or testing and that party is not subject to any obligation limiting its ability to obtain the trade secret;
   • which was obtained through the exercise of employees’ rights to information and to a hearing, or of consultation and co-determination rights of employees representatives.
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7. The use or disclosure of a trade secret does not fall under Section 9.1 if it occurs for the protection of a legitimate interest, in particular
   • to exercise the right of free expression and freedom of information, including respect of the freedom and plurality of the media;
   • to expose an unlawful act or professional or other misconduct, if the acquisition, use or disclosure lends itself to the protection of the general public interest;
   • in the scope of disclosure by employees to employee representatives, if this is required for the employee representatives to carry out their duties.
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8. Contractor undertakes to impose the same level of confidentiality obligations on all employees or other vicarious agents (e.g. technical assistants) entrusted by Contractor with carrying out a Booking.
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9. For each case of culpable violation of an obligation based on this Section 9, the Contractor must pay LemonOne a contractual penalty in the amount of EUR 2,000. Payment of the contractual penalty does not exclude the assertion of the claim for injunctive relief or for further damages. The contractual penalty will be offset against any possible damages.
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10. Guarantees, indemnification

1. Contractor guarantees that
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   a) they are fully entitled to the rights necessary for the granting of exploitation rights in accordance with Section 6, in particular copyright in the visual materials;
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   b) they are the sole author;
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   c) no third parties have rights in the visual materials which conflict with this Agreement;
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   d) they have produced and composed the visual materials in such a way that they do not infringe any third party rights (in particular copyright and/or third-party intellectual property rights) and that in the event that persons are recognisable in the visual materials, consent has been obtained from those persons by means of the app provided by LemonOne and that the data protection policy has been made available to them;
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   e) the production of the visual materials has not been carried out in breach of public law provisions, and that
   
   f) they have not published the visual materials prior to delivering them.
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2. Contractor indemnifies LemonOne from all legitimate third-party claims which are asserted against LemonOne on the basis of a culpable violation of Contractor’s obligations under this agreement or the violation of a guarantee as per Section 10.1. This indemnification also includes the costs for any necessary legal defence against such claims, including attorney fees in accordance with the German Attorneys’ Fees Act. Where possible, Contractor shall fulfill their obligation to indemnify by directly satisfying the third-party claims.
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3. As far as is possible and reasonable and to the extent this does not lead to visual materials not being accepted by LemonOne’s Client as performance of the agreement, Contractor provide licences or modified versions of the visual materials to LemonOne with regard to third-party claims under Section 10.2, with which LemonOne can avoid third-party rights infringements without suffering a compromise in quality in the visual materials.
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4. Notwithstanding Section 10.2, in cases of third-party claims being asserted, LemonOne shall decide whether and to what extent such disputes can be contested in court or resolved by means of an out-of-court settlement.
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5. Contractor will support LemonOne in cases of disputes with third parties regarding the visual materials that are the subject matter of the contractual agreement and Contractor will provide any and all information required for an appropriate legal defence.
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6. Contractor indemnifies LemonOne from all other legitimate claims asserted by Clients or third parties against LemonOne, in particular claims for damages, which such Clients or third parties assert on the basis of Contractor’s work for LemonOne. This does not apply where the Contractor is not responsible for the underlying loss or damage or violations of obligations.
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11. Final provisions

1. Non-assignment
   Contractor may not, without prior written consent, assign the rights and obligations under this Agreement in part or in full to third parties.
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2. Non-exclusivity
   This Agreement has been entered into without either party staking any claim to exclusivity. Therefore, Contractor is free to take on other bookings similar to those described in the Framework Agreement, on behalf of third parties and LemonOne may entrust Bookings similar to those described in the Framework Agreement to any other natural or legal person, irrespective of whether they are a competitor of Contractor or not.
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3. Independence of the parties
   The parties expressly declare that they are and shall remain independent business partners for the term of this Agreement.
   
   None of the provisions of this Agreement shall be interpreted as meaning that one of the parties is entitled to manage or monitor the daily activity of the other party, nor can the Agreement be interpreted as meaning that the parties are committed to one another beyond the contractual relationship under this Agreement or in any way form a joint venture or legal person.
   
   Consequently, Contractor is fully and exclusively responsible for executing Bookings accepted in the scope of this Agreement and for which Contractor warrants that it possesses the necessary expertise.
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4. Completeness of the Agreement, severability and changes
   This Agreement replaces any previous verbal or written agreement with regard to the subject of this Agreement.
   
   Should individual provisions of the Agreement prove to be ineffective, either in full or in part, the remaining provisions of the Agreement shall remain unaffected thereby. Such ineffective provisions must be replaced, where possible, through an amended contractual interpretation or, to the extent that is not possible, by amicable agreement of the parties, by such provisions which, taking into account the interests and mutual need for a respective provision, is legally effective and is most suitable for achieving the contractual purpose.
   
   Amendments to this Framework Agreement must be in writing. This also applies in respect of the written form requirement itself.
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5. No waiver in the event of non-exercise
   Should one party not exercise or waive the exercise or enforcement of one of the rights afforded to it under this Agreement, this cannot be regarded as a waiver of this right for the future, since the waiver only applies in respect of the purpose of the specific situation concerned.
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6. Applicable law - Place of performance
   The Framework Agreement and the Bookings are subject to German law.The place of performance for this Framework Agreement and the Bookings issued under it is the location of LemonOne’s registered offices.