Current version July 9th, 2020
General Terms and Conditions for the Licensing and Order for Film Material
1. Technical Steps for Formation of a Contract
1.1. In order to place an online order, the Customer shall place the selected Shots (i.e. unedited image sequence; see Clause II. 2) or Shot lists and the thereby selected Licensed Material (see Clause III. 1) into the shopping basket (button: ).
1.2. Any Rights of Use (see Clause III. 2 and III. 4) to Licensed Material that has been placed into the shopping basket, and which are required by the Customer in order to make the purchase, may be ascertained by means of the online calculator (button: ).
1.3. For shots that are longer than 20 seconds the customer sets in- and out-points on the online video player to define the section of the shot he wants to license and to calculate a per second rate.
1.4. The License Fee (see Clause III. 9) is based on the calculation as determined by the online calculator. Once all usage factors have been entered in accordance with Clauses 1, 2 the applicable fee will be shown for each Shot from the Licensed Material, and also as a total figure for all of the Licensed Material contained in the shopping basket.
1.5. By clicking on the order button (button: "PROCEED TO CHECKOUT") the shopping basket will be finalised in terms of formation of the Contract, in preparation for the order which is not actually placed until later.
1.6. The next step requires the Customer to enter the type of Licensed Material (data or tape format) required for delivery (button: "FORMAT") and to state the delivery address.
1.7. The Customer may then select the method of payment from various options (button: "PAYMENT OPTIONS").
1.9. As standard the License Term (see Clause III. 2.9), i.e. the date on which the License commences, is set as being the date on which the order is placed, however this can be changed by entering a different date (button: ).
1.11. Once the order has been completed, the Customer will be emailed a link by means of which the Licensed Material can be downloaded.
2. Retention of a Copy of the Contract
Framepool will retain a PDF file of the Contract within the Customer's account.
3. Provision of Technological Means for Recognising and Correcting Input Errors Prior to Formation of the Contract
In respect of all of the steps described in Clause 1 above which serve to prepare for contractual formation, Framepool shall provide the technological means for recognising and correcting input errors prior to formation of the Contract in such a manner as to enable the Customer to correct errors using the "BACKSTEP" or "MY CART" buttons.
4. Languages Available for Formation of the Contract
II. General Terms and Conditions for Framepool Services
1. Scope of these General Terms and Conditions, Changes
1.1. The following terms and conditions (hereinafter "GTC") apply to the provision of services (hereinafter "Services") which Ninu, Inc. DBA Framepool (hereinafter "Framepool") makes available to the contractual partner (hereinafter "Customer").
1.2. Changes to these GTC shall be notified to the Customer when he uses the Framepool Internet portal and become valid and binding at the latest when the Customer uses the Services. In the event of changes to the detriment of the Customer, the Customer may terminate this contractual relationship with immediate effect.
Third Party Rights: Rights of third parties to works appearing in the Footage (incl. any music, architectural works, monuments, sculptures), personal privacy of persons shown, trademark rights, rights to a name or company rights appearing in the Footage;
Licensed Material: Footage licensed by the Licensor, represented by Framepool, to the Customer. Generic term for raw, uncut material, cinematographic works and single shots, regardless of whether or not such Footage is copyrighted or otherwise registered or whether such registration does not exist (anymore) (public domain);
Shot: Series of frames up to 20 seconds in length (base price);
Webshop: The website established and run by Framepool which is accessible via the Internet and has a database for the online marketing of Footage;
3. Conclusion of the Contractual Relationship with Framepool
As soon as the Customer makes use of any of the Services under Clause 4, the contractual relationship governed by this GTC comes into existence.
4.1. Framepool offers the following Services, which the Customer may also order separately to an extent which needs to be agreed upon in the individual case:
- offline research for Footage through Framepool, which Framepool undertakes to carry out with due care and using the sources available for Framepool. Framepool does not owe any success in research and thus neither a proof nor the provision of the Footage required by the Customer;
- granting of access to the Webshop to enable search of Footage and selection of Shots and audiovisual works;
- preview and download of Shots as viewing material in order to facilitate selection (subject to prior sale);
- delivery of videotapes or data carriers containing time-coded Footage for facilitating selection (subject to prior sale);
- offline research for the authorized grantor(s) of Third Party Rights and the clearance of Third party rights required by the Customer (against payment) at the expense of the Customer;
- the delivery of the Licensed Material licensed under the mediation of Framepool to the Customer through licensors in the ordered type and quality. Such Licensed Material shall be deemed accepted by the Customer if there is no customer complaint reaching Framepool within two weeks. After using the footage according to the contract the Customer undertakes to return such Licensed Material as well as any copy thereof free of charge to Framepool. In the case of it being digital data or magnetic recordings, the Customer undertakes to delete or destroy such material and to inform Framepool thereof. Parts of the Licensed Material which have become the subject of a newly produced cinematographic work after the conclusion of a licensing agreement stipulated with the help of Framepool as well as any copies thereof shall not be included in this provision.
4.2. If a Service is provided for a consideration, Customer shall receive notice before he places the order. The respective consideration shall be agreed separately (see Clause 7).
4.3. Access to the Webshop is in principle offered 24 hours a day, 7 days a week, 365 days a year; however, limited to an average availability of 85% of a year. Transmission problems which are due to defective connections of network providers not commissioned by Framepool are not included in this figure.
4.4. Framepool is allowed to interrupt and limit the time for the provision of Services. If the Service is for consideration, such interruption or limitation is only allowed to the extent necessary for reasons of public safety, in order to carry out operationally-necessary work or to reduce failures. Framepool will take the Customer’s interests into consideration as far as possible.
4.5. The agreed availability times only apply on the condition that the Customer meets his obligations in time and in full.
5. Customer’s Duties and Obligations, Back-Up of Data
5.1. The Customer shall, at his own cost and as a precondition for the access to the Webshop, create and maintain the technical, organizational and contractual conditions for its Internet access, including sufficient speed of data transmissions.
5.2. The cost of internet access and usage shall be born by the Customer.
5.3. Any use of the Services shall be not abusive and in compliance with applicable law. The Customer shall observe nationally or internationally protected copyrights, rights of use on copyright and other ancillary rights which apply to the Footage in the Webshop, and only utilize these within the framework of the licensing agreements concluded through the agency of Framepool. The Customer will observe the copyrights and related industrial property rights of Framepool with regard to the Webshop, its contents and structure and only use it within the framework of these GTC as well as any other agreements con-cluded with Framepool.
5.4. The Customer does not acquire any rights or rights of use regarding Footage by downloading such Footage. Insofar as the Customer obtains Footage for preview purposes, he may make use of it solely personally and for the purpose of selecting suitable material for the intended use; he must leave all markings affixed by Framepool in place. It is not admissible to disseminate, copy or pass on Footage unless an appropriate agreement is concluded.
5.5. The Customer shall, upon the first request, hold Framepool harmless from all claims asserted by third parties against Framepool due to the Customer infringing its duties vis-à-vis Framepool.
6. Access Codes, Utilization by Third Parties
6.1. It is solely the Customer who is allowed to make use of the access codes required for access to the Webshop. Should he allow third parties to use these access codes, he has to take responsibility for their actions as if he himself had made use of the access. This shall apply accordingly, if the Customer allows several users to register with different access codes on his account, and if one of the authorized users appointed by him allows a third party to make use of his or any other of the Customer's access codes.
6.2. Rights and obligations arising under agreements between Framepool and the Customer can by means of novation only be assigned to third parties with the express written consent of Framepool.
6.3. The Customer shall immediately modify the access codes required for accessing the Webshop, if he has reason to believe that these have become known to unauthorized third parties or that third parties are making use of Services with his access codes.
7. Framepool Service Fees
Framepool shall receive from the Customer those fees notified to it once the Customer has ordered the respective Service, i.e.
- fees for offline research,
- handling fees for delivering viewing material or ordered licensed material depending on the shipping method required,
- fees for obtaining clearance of authorizations and consents according to Clause 4.1.
8. Invoicing and Terms of Payment, Current Account Agreement, Default in Payment
8.1. Billing, Due Date
The fees and expenses owed to Framepool as well as any fees to be paid for clearance of Third Party Rights become due for payment upon invoicing, insofar as no later due date has been agreed in writing.
8.2. Setting-off Claims
The Customer can set off against claims by Framepool as well as against claims collected by Framepool to the extent such counter-claims are undisputed or adjudicated in a legally binding manner.
8.3. Term for lodging objections
Objections against invoices have to be made in writing directly to Framepool. If no objections are lodged within a term of six weeks from the receipt of the statement of account or an invoice or payment or collection of the invoice amount, invoices are deemed to be accepted.
8.4. Direct Debit Authorization, Costs of Return Debits
If agreed in writing, fees which are due shall be collected from the Customer's account by direct debit or by debiting the credit card account provided by the Customer. If the Customer revokes such authorization, Framepool is entitled to charge an appropriate processing fee for the additional administrative expenditure incurred, which is equivalent to the costs arising thereof.
For cases of return debits due to incorrect account details having been quoted or a lack of funds on the account or other reasons arising in the Customer's sphere, Framepool is entitled to charge a processing fee amounting to EUR 20.00 per debit plus the bank fees charged to Framepool for the return debits.
8.5. Defaults in Payment
If the Customer is in default with regard to settling due claims, interest is charged on these claims from the start of default at a rate of 9% above the base interest of the ECB p. a. Framepool is entitled to charge a processing fee of EUR 40.00 for the collection procedure.
8.6. In the case the Customer should not act in its own name but on behalf of a Third Party, the Customer and the Third Party are jointly and severally liable for any payments to be made to Framepool.
9. Liability, Warranty
9.1. Framepool is liable
9.1.1. for damages which are due to a deliberate or grossly negligent actionable tort or a deliberate or grossly negligent violation of contractual or pre-contractual obligations by Framepool or a legal representative or vicarious agent of Framepool or for damages based on an injury to life, body or health and according to the German Product Liability Act;
9.1.2. in the case of Framepool's slight negligent conduct whereby major obligations important for the carrying through of the contract have been violated. In such case, Framepool's liability is, however, limited to compensation of foreseeable damages typical to the contract.
9.2. Force majeure
Framepool is exempted from any obligation to perform in cases of force majeure. Force majeure encompasses all unforeseeable events as well as events which, although they themselves were foreseeable, have effects on performance of the contract, which could not be prevented by reasonable efforts on the side of Framepool. This includes in particular lawful measures in the course of labour disputes, including those plants of third parties, as well as measures by government offices.
10. Blocking Access to Services
Framepool is authorized to block access to the Webshop if the Customer
- is in default with payments amounting to at least EUR 80 and any security which may have been provided has been consumed or
- if an important contractual obligation or any kind of contractual obligation is violated and such violation cannot be remedied despite the granting of an appropriate additional period of time.
11. Data protection
Personal data of the Customer is only collected, processed or used, insofar as the person involved has given its consent or if it is permissible under the applicable law.
12.1. The invalidity of individual clauses does not affect the validity of the remaining provisions and the contractual relationship. The invalid provision shall be replaced by an appropriate provision which - within the framework of what is legally admissible - comes closest to the intention of the invalid provision.
12.2. Changes and addenda to any agreement must be made in writing. The same shall apply with regard to the conditioning out of the requirement of written form.
12.3. The contractual relationship between Framepool and the Customer is governed by the laws of the Federal Republic of Germany, with the exception of the Convention on the International Sale of Goods (CISG).
12.4. Exclusive venue and place of performance is at the registered office of Framepool.
III. Licensing Terms for the Use of Licensed Material
I. Licensing Terms for the Use of Licensed Material
1.1. Effectiveness of License Agreement
If Framepool or the Framepool Website receives an electronic or other “Order of Licensed Material and Licensing Agreement” (Order Form) which shows
- Customers written or electronic signature or transaction data only known to the Customer (TAN or password),
- a description identifying the Licensed Material to be ordered,
- the usage intended by the Customer (Intended Use) and the non-exclusive Rights of Use to be acquired including possible limitations, and the License Term,
- the Licensing Fee,
- consideration to be paid for the settlement of Third Party Rights as part of a service, if any,
- the handling and service fees due to Framepool as well as the expenses (expenses to be named only by type, not necessarily the respective amount) to be refunded,
a Licensing Agreement between the Customer and the respective Licensor(s) represented by Framepool becomes effective upon confirmation of this order by Framepool (by fax, e-mail or in the Webshop), incorporating the content of the Order Form as well as the Licensing Terms as laid down hereinafter (LT). The provisions of the Order Form have priority over the LT.
1.2. Licensed Material
Footage licensed by the Licensor, represented by Framepool, to the Customer. Generic term for raw, uncut material, cinematographic works and single shots, regardless of whether or not such Footage is copyrighted or otherwise registered or whether such registration does not exist (anymore) (public domain).
1.3. Licensing Fee
For purposes of this Agreement, the term Licensing Fee means the fee owed from Licensee for granting the Rights of Use under this Licensing Agreement.
2. Content and Limitations of the Rights of Use, Definitions
2.1. The Right of Making Publicly Available (On Demand Right, VOD, DTO)
The Right of Making Publicly Available is the right to make the Licensed Material geographically restricted or unrestricted available to the public via analogue, digital or similar transmission technology regardless of the nature of the receiving device. It includes push services, the right to store the Licensed Material on any kind of electronic data processing media and the right of dissemination of publicly available Licensed Material, for example with the "Share" function within social media platforms.
2.2. Right to Edit Licensed Material:
The Right to Edit Licensed Material encompasses the right to change, to amend and to modify the Licensed Material in full or in part, in particular to shorten, split and mix it with other productions, to transfer it into other work formats or analogue technology and to integrate it one-time into a new Production to be created by the Customer whilst respecting the moral rights of the author.
2.3. Right to Broadcast:
The Right to Broadcast is the right to broadcast the Licensed Material terrestrial, via cable, wireless, by satellite or any other technical broadcasting methods, including pay-tv and video on demand, restricted to a certain number of broadcasts, as the case may be.
2.4. Video Right:
The Video Right is the right to copy, rent out or distribute the Licensed Material on all types of image/sound carriers (cassette (e.g. VHS, CD, DVD)), restricted to a certain number of copies, as the case may be.
2.5. Right to Perform:
The Right to Perform is the right to make the Licensed Material perceptible to the public by technical installations. The Right to Perform applies to all film formats and other image/sound carriers and comprises commercial and non-commercial performances. The Right to Perform may be limited within the Licensing Agreement to
- Cinema (theatrical rights), whereby the Customer acquires the Right to Perform the Licensed Material in movie theatres (theatrical rights);
- Festival, whereby the Customer acquires the Right to Perform the Licensed Material on the occasion of one or more festivals;
- Point of Sales, whereby the Customer acquires the Right to Perform the Licensed Material on occasion of the promotion of one named enterprise or its products and services at point of sales and sales talks;
- Out-of-Home (OOH), whereby the Customer acquires the Right to Perform the Licensed Material on occasion of the promotion of one named enterprise or its products and services on screens on public places, streets, airports, stations (planes, trains, bus and subway), stadiums or within closed digital networks (Inflight, Digital Signage Networks);
- Public Presentation (trade fair, event), whereby the customer acquires the Right to Perform the Licensed Material on occasion of the promotion of one named enterprise or its products and services on one or more trade fairs, exhibitions and/or industry events;
- Public Presentation (Museum / Exhibition / Theatre / Education), whereby the customer acquires the Right to Perform the Licensed Material in events with an educational or cultural non-commercial purpose;
- Limited Audience, whereby the customer acquires the Right to Perform the Licensed Material for entertaining, informational or other non-commercial purposes within closed networks or environments with restricted audience. (Inflight, hotels, ships, closed circuit, digital signage).
2.6. The Advertising and Promotional Right
The Advertising and Promotional Right is the right to use the Licensed Material in its original or edited or modified form in a length as customary in the industry concerned for the purpose to advertise for and promote the exploitation of the Production in accordance with the Rights of Use granted to the Customer. Included is the right to advertise for the exploitation of the Production in the manner customary in the industry concerned by using printed materials.
2.7. Printing Right
The Printing Right comprises the right to take single frames out of the Licensed Material, limited to certain single frames or a certain number of single frames, as the case may be, to work on it and to typographical print and distribute the same, however restricted to a certain circulation.
A film created by exercising the Right to Edit the Licensed Material. The Customer acquires the rights to the resulting Production which he is legally entitled to. Framepool and the Licensor have no rights in and to the Production; however the right to exploit the Licensed Material outside the Production is not transferred if not stated otherwise (clause 2.6). The rights of the Licensor and of Framepool in and to the Licensed Material in its isolated form remain unaffected.
2.9. License Term
Rights of Use are limited to the term of license named in the Order Form (License Term). If no License Term is indicated in the Order Form, the License Term is one year following initial utilization, at the most two years following conclusion of the License Agreement, unless a different term results from the specific Rights of Use agreed upon.
2.10. License Territory
Rights of Use are only granted for those territories which were named in the Order Form (License Territory). The Right of Making Available is only granted for the licensed language as indicated in the Order Form.
2.11. Circulation Figures
The Video Right or the Printing Right may be restricted to a limited number of copies as specified in the Licensing Agreement.
2.12. Internal Use
The Rights of Use may be restricted to internal non-public technical facilities or manners of circulation such as internal presentations, employee videos or distribution within an internal company network (Intranet).
3. Content and Limitations of the License
The Customer is entitled to edit the Licensed Material identified in the Order Form to create one (1) Production and to use the Licensed Material as part of the Production. The use is restricted to the License Territory and the License Term and those Rights of Use necessary to achieve the defined purpose of the License granted. The License granted is restricted to the use in the Production named in the order form or the Confirmation of the Usage. It is subject to the suspending condition of full payment of the License Fee and fees due to Framepool.
The license granted by this Agreement is non-sublicensable and non-transferable, except that the Licensee may assign its rights under this Agreement solely in connection with the distribution of the Production. However, under no circumstances may such assignee sub-license or archive any Content, except to the extent and in the form that such Content is contained in the Production.
Any termination of this agreement will not affect any licenses granted pursuant to the terms hereof during the effective term of the Agreement.
3.2. Approval Requirements
If the name of the producer of the Licensed Material and/or the cameraman was shown on the Order Form, and the Production to be created is essentially to consist of Licensed Material which was produced by the same producer and/or cameraman, the making of the Production by utilizing the Licensed Material requires express written approval by the respective producer and/or cameraman in advance. A film production essentially consists of Licensed Material created by a producer or a cameraman if seventy-five percent or more of it is created from such Licensed Material.
3.3. Exemptions, Third Party Rights, Copyright and Performing Arts Societies
The Rights of Use granted to the Customer comprise only Rights of Use under Copyright as stipulated in the Order Form. Only if and when the Order Form states a Third Party Rights' clearance, such Third Party Rights are included. If not, the specific use of the Licensed Material might require the clearance of such Third Party Rights. If Customer asks for such service, Framepool shall try to obtain such clearance. If such clearance is not available, the Customer shall use the licensed material on own risk and, if not stated otherwise in the License Agreement, Framepool will not indemnify the Customer and is not obliged to any exemption.
As far as they are assigned to copyright or performing rights societies (e.g. ASCAP, BMI), the Customer will discharge third party rights separately. This applies accordingly to the discharge of moral rights of people depicted in the Licensed Material and possible claims by persons involved in the manufacturing of the Licensed Material, insofar as these can be asserted exclusively by copyright or performing rights societies.
Insofar as the Licensor has indicated any limitations for use on the Order Form, the right granted to the Customer is limited accordingly.
4. Named Usages, Use Restrictions and Project-Specific Implementation of the Licensed Material
The Customer acquires the Rights of Use, listed in the Licensing Agreement for the following usages:
4.1. Named Usages
4.1.1. Usage: Commercial / Advertisement
Use for a promotional Production having a length of less than 90 (ninety) seconds targeted on the promotion of products or services or the reputation of enterprises, organizations, institutions or subjects.
4.1.2. Usage: Corporate Communication (presentations, internet, tradefairs)
Use for a promotional Production having a length of more than 90 (ninety) seconds either
- for the promotion of a named enterprise or its products or
- for a internal presentation of a named enterprise.
4.1.3. Usage: Branded Entertainment (sponsored programming)
Use for a promotional Production having a length of more than 90 (ninety) seconds which has either an editorial content, i. e. a content related to facts or events, or which is an entertaining fictional Production targeted on the promotion of products or services or the reputation of enterprises, organizations, institutions or subjects.
4.1.4. Usage: Trailer / Promotion (motion picture)
Use for a Production, having a length of up to three (3) minutes, to promote a motion picture.
4.1.5. Usage: Motion Picture (theatrical release)
Use for an entertaining Production with a first release in a theatre / cinema.
4.1.6. Usage: Documentary Film (theatrical release)
Use for an editorial Production, that is a Production related to facts or events, with a first release in a theatre / cinema.
4.1.7. Usage: Entertainment Formats (series, films or shows)
Use for an entertaining fictional Production with a first release on television or in digital media (motion picture, series, play or show).
4.1.8. Usage: Factual Formats (tv- or internet-documentary, -magazine programme or -news)
Use for an editorial Production, that is a Production related to facts or events or a newscast, with a first release on television or in digital media (documentary, magazine program or news). Included are formats like docu-drama where facts are the basis of storytelling.
4.1.9. Usage: Trailer / Promotion (tv programme)
Use for a Production, having a length of up to three (3) minutes, to promote a television programme.
4.1.10. Usage: Public Service Announcement PSA (non-profit)
Use for a Production to promote a named non-profit organization or an organization of social welfare.
4.1.11. Usage: Cultural and Educational Projects (museum, exhibition, work of art, stage décor, education)
Use for a Production belonging to the areas of culture or education for exploitation in museums, exhibitions, during cultural events, as part of art installations, stage décor as well for teaching purposes.
4.1.12. Usage: Music Video / Stage Décor for Concerts
Use for a Production that is based on a piece of music or for decoration of concert stages.
4.1.13. Usage: Moodfilm (Pitch), Layout
Use for a Production which has the purpose to visualize ideas and concepts for one (1) internal presentation to a client.
4.1.14. Usage: Gaming
Use of the Licensed Material only as part of one (1) online and offline electronic game.
4.1.15. Private Use
Use of the Licensed Material for private, non-commercial and non public purposes (wedding videos, home videos).
4.1.16. Usage: Royalty Free
Use of the Licensed Material only as part of any kind and number of Productions produced by the Customer.
4.1.17. Usage: Still image, editorial use
Use as still image (1 frame) for an editorial publication that is related to facts, events or news.
4.1.18. Usage: Still image, advertisement
Use as still image (1 frame) for a promotional publication (advertisement) targeted on the promotion of products or services or the reputation of enterprises, organizations, institutions or subjects.
4.1.19. Usage: Still image, corporate publishing
Use as still image (1 frame) for a publication that promotes a named enterprise or its products or for an internal presentation of a named enterprise.
4.1.20. Usage: Still image, retail product
Use as a still image (1 frame) printed on a retail product.
4.2. Use Restrictions
4.2.1. The Customer may not make use of the Licensed Material obtained through Framepool in an unlawful manner or in violation of any applicable regulations. This includes, without limitation, information and portrayals which are subject to prohibitions of any statutes, regulations or treaties for the protection of minors, or contain pornographic, defamatory or other illegal or immoral content.
4.2.2. The Customer must not use the Licensed Material licensed through the agency of Framepool in any manner other than that expressly allowed by the Licensing Agreement, regardless of whether it is legally protected in its specific form. An extension of Rights of Use is possible at any time by means of a Licensing Agreement, however subject to restrictions which may come into existence afterwards.
4.3. Implementation in the Production
The Customer bears the sole responsibility for the lawfulness and manner of use of the Licensed Material and especially its project-specific implementation in the Production covered by the Project named in the Licensing Agreement in the Licensed Territory as well as within the scope of the authorized Named Usage and the Rights of Use according to the terms and conditions of the Licensing Agreement and the LT. Any liability of Framepool or the Licensor no matter within which modality (Clause 10) for this sphere of responsibility of the Customer is excluded.
5. Confirmation of the Usage of Licensed Material
The Customer who has received Film Material for preview purposes (According to section 5.4 of the Terms and Conditions for Framepool Services) shall within a reasonable time after having created the Production forward a Usage Report to Framepool. The Usage Report shall include information on
- the final title of the Production,
- the individual FP-Codes of the Framepool shots used within the Production,
- the first intended date for broadcasting and,
- if the rights in the Production are licensed to a third party, name and address of said third party.
If the complete Usage Report is not delivered to Framepool the Customer owes Framepool the License Fee for the entire Film Material submitted by Framepool (instead of the part used).
6. Subsequent Billing and Return of Licensed Material
If the Usage Report indicates a use of the Licensed Material in excess of the Calculating Factors underlying the Licensing Agreement, Framepool may bill the excessive use subsequently according to clause 7.
7. Subsequent Acquisition of Additional Rights
The Customer may offer to Framepool the acquisition of additional Rights of Use, in particular the extension of the License Term and/or License Territory, and/or an increase in the number of broadcasts/re-runs, by referencing the original Order Form and giving the information required under Clause 1 for the additional use.
Framepool shall then check the availability of the requested rights and name the License Fee for the additional use. A Licensing Agreement for the additional use shall become effective in accordance with Clause 1 .
8. Unlicensed use of the Licensed Material
If the Customer uses the Licensed Material outside the scope stated in the form of confirmation (Clause 5) or fails to acquire additional Rights of Use (Clause 7) or uses it in any other non-licensed manner (this includes the recreation of an already existing Production and the use before payment of the agreed upon fees), he owes the full amount of the License Fee he would have owed if he had acquired the appropriate license from the outset. Further claims for damages remain unaffected.
9. Calculation of the Licensing Fee, Due Date
9.1. Calculation of the Licensing Fee
The Licensing Fee will be calculated with the calculation factors listed in the Order Form according the requested scope of usage rights.
Multiple use or repetitions or a freeze image of the Licensed Material are calculated according to the use of running Licensed Material.
9.2. Billing, Due Date
The Licensing fee and expenses owed to Framepool become due for payment upon invoicing, insofar as no later due date has been agreed in writing.
9.2.1. Term for lodging Objections
Objections against invoices have to be made in writing directly to Framepool.
9.2.2. Direct Debit Authorization, Costs of Return Debits
If agreed in writing, fees which are due shall be collected from the Customer's account by direct debit or by debiting the credit card account provided by the Customer.
9.2.3. Defaults in Payment
If the Customer is in default with regard to settling due claims, interest is charged on these claims from the start of default at a rate of 9% above the base interest of the ECB p. a. Framepool is entitled to charge a processing fee of EUR 40.00 for the collection procedure.
9.2.4. In the case the Customer should not act on its own name but on behalf of a Third Party, the Customer and the Third Party are jointly and severally liable for any payments to be made to Framepool.
10. Liability, Warranty
10.1.1. Framepool represents and warrants that it has all necessary rights to enter into this Agreement, to have been commissioned by the respective Licensor to market the Licensed Material and to grant on behalf of the licensor all of the rights granted herein. The Licensor warrants to be entitled to license the Rights of Use, as long as such rights (still) exist. Framepool and the Licensor represent and warrant that no other permissions in regard to copyright and other warranties made herein are required.
10.1.2. If the Order Form states the clearance of Third Party Rights or other related rights, the warranty includes the respective clearance by the party which did obtain the clearance, as notified by Framepool.
10.1.3. The Customer takes notice of the fact that Licensed Material may in whole or in part contain archival material, which is no longer copyright protected and is therefore in public domain; the obligation of the Customer to pay the Licensing Fee according to the Licensing Agreement and the LT shall remain unaffected thereby, with the result, that in such cases the Licensing Fee has to be paid for the right of the Customer to use the copy of the Licensed Material provided by Framepool as stipulated in the Licensing Agreement and the LT.
The parties are liable
10.2.1. for damages which are due to a deliberate or grossly negligent actionable tort or a deliberate or grossly negligent violation of contractual or pre-contractual obligations by themselves or a legal representative or vicarious agent, or that result from a violation of the warranty (Clause 10.3) or for damages based on an injury to life, body or health and according to the German Product Liability law.
10.2.2. in case of slight negligent conduct whereby major obligations important for the carrying through of the Contract have been violated. In such case the liability is limited to compensation of foreseeable damages typical to the contract.
10.3. Limitation of Remedies
10.3.1. If a third party claims that the contractual use of Licensed Material licensed by agency of Framepool infringes said third party’s copyrights or Cleared Rights, the Customer shall
- immediately inform Framepool or an authorized person nominated by Framepool of this claim and provide information necessary for the defence,
- defend himself against the claims asserted in accor-dance with the instructions received from Framepool or an authorized person nominated by Framepool,
- in cases where there is an imminent danger take measures required for defence, if a deterioration of the legal situation is impending,
- refrain from measures which might hinder or impair defence against the claims asserted.
Subject to obtaining the Customers prior agreement in writing, Framepool shall at its own option either conduct the legal dispute with the claimant at its own cost or offer the Customer a license for replacement material for his use, for which no rights of third parties apply.
10.3.2. Claims by the Customer in case of deficiencies regarding the contractual Rights of Use are directed exclusively against the individual Licensor in question, whom Framepool will in such case immediately name to the Customer upon his request. Any liability of Framepool due to having acted as an unauthorized representative remains unaffected, provided however that the liability limitations according to Clause 10.1 and 10.2 shall apply.
10.3.3. Notwithstanding anything to the contrary, Framepool’s and Licensor’s sole and exclusive remedy for Customer’s breach, termination or cancellation of this Agreement will be an action at law for damages, and Framepool and Licensor hereby waive any right to seek and/or obtain injunctive or equitable relief in connection with the production, distribution or other exploitation of the production.
10.3.4. Where the Customer acquires Rights of Use on behalf of a Third Party as Licensee, the Customer hereby represents and warrants that it is authorized to act as an agent on behalf of the Licensee and has full power and authority in accordance with the Licensing Agreement and LT; and if Licensee subsequently disputes such power or authority, the Customer shall be bound and liable for any failure of Licensee to comply with the Licensing Agreement and LT.
10.3.5. The Customer concludes the Licensing Agreement after diligently selecting from the Licensed Material he can view online. For the order and delivery of Licensed Material only those terms will be applicable that are concluded in a separate agreement between the Customer and Framepool. In case that Framepool fails to deliver the Licensed Material the Customer has the right to cancel the Licensing Agreement for the respective Licensed Material. In this case, the Customer shall not be entitled to further claims of damage against the Licensor.
10.3.6. In line with the provisions of clause 10.1 and 10.2, the parties agree to indemnify and hold free and harmless to the fullest extent permitted by law, the other party, against claims resulting from any breach of their contractual obligations agreed herein.
11. Force majeure
The parties are exempted from any obligation to perform in cases of force majeure. Force majeure encompasses all unforeseeable events as well as events which, although they themselves were foreseeable, have effects on performance of the contract, which could not be prevented by reasonable efforts on the side of Framepool. This includes in particular lawful measures in the course of labour disputes, including those at plants of third parties, as well as measures by government offices.
12. Taxes and Duties
The Customer declares that he is registered as a commercial enterprise in the country of his registered office, that the Licensed Material and the acquired rights are used for commercial purposes of his own company and that he is entitled to deduct input-VAT from his VAT payment charge account. The Licensing Fee is stated without taxes which accrue because of purchase, utilization, transaction and withholding tax. Taxes and Duties to be paid due to the licensing and/or exploitation of the Production in the License Territory have to be born by Customer.
The name of Framepool must only be shown in the final credits if the Licensed Material is
- used as part of a Television Coverage or a Motion Picture (Clause 4.1.5 - 4.1.8) and if any other provider of comparable services is given a credit within the Production or is
- printed as single frame in printed matter or used as online still image.
If the Customer uses Licensed Material as still image to be printed or presented online he has to add a copyright remark “Framepool / name (photographer/licensor)”.
If the Customer uses Licensed Material in a Production having a length of 20 minutes or more exceeding 5% of the total length of the Production or five minutes, the name of Framepool and the cinematographer have to be shown in the final credits in a way to be agreed upon.
14.1. The invalidity of individual clauses does not affect the validity of the remaining provisions and the contractual relationship. The invalid provision shall be replaced by an appropriate provision which – within the framework of what is legally admissible – comes closest to the intention of the invalid provision.
14.2. Changes and addenda to any agreement must be made in writing. The same shall apply with regard to the conditioning out of the written form.
14.3. All contractual relationship between Framepool, Licensor and the Customer are governed by the laws of the Federal Republic of Germany, with the exception of the Convention on the International Sale of Goods (CISG).
14.4. Exclusive venue and place of performance is at the registered office of Framepool.