Standard license terms for PantherMedia

Effective date: May 15, 2020

Preamble

Employees and external agents (hereinafter “users”) of corporate customers and advertising, communication and other agencies (hereinafter “customers”) search, find and license photographic images, illustrations, graphics or other digital content via the Smint.io platform.

These license conditions are the prerequisite for the use of content obtained via the Smint.io GmbH (hereinafter called “Smint.io”) operated Smint.io platform.

These license conditions apply to the following licensors and represent a direct regulation of rights and obligations between the customer and the licensor:

PantherMedia GmbH, Rüdesheimer Str. 11, 80686 Munich, Germany (hereinafter called “licensor”)

§1 Subject

The subject of these license conditions is the granting of a usage license, which basically grants a non-exclusive, non-transferable and non-sublicensable usage right to the license material selected by the customer, which is retrieved or delivered from the licensor’s image database, in accordance with the following agreement.

This license material is photographic images, illustrations, graphics or other digital content that is made by optical, electronic, digital or other means, including the associated metadata.

All license material is protected by copyright. The delivered or electronically transmitted license material always remains the property of the licensor and / or their licensors and is only made available for the acquisition of rights of use in the sense of copyright.

The licensor is entitled to change these license terms, fees and other conditions, provided that the changes / adjustments are reasonable for the user / licensee taking into account the interests of the licensor. The right to changes does not apply to essential provisions of the contractual relationship, in particular the type and scope of the mutually agreed services.

Smint.io will, if possible, inform the customer of the change one week before the change takes place, but at the latest at the time of the change. If the customer does not accept the change in advance, Smint.io will deactivate the contract in the Smint.io platform. The customer can reactivate the contract at any time, which is considered approval of the change.

§2 Layout license

The licensor grants the customer a free, limited usage license for all content with or without watermark to create drafts, test layouts and demo presentations (so-called “layout files”) if this is based on the intention to license the content later. The layout files may not be used internally or externally in final products. Layout files may not be made publicly accessible, i.e. they may not be used on other websites, servers with free internet access or on a company’s intranet.

§3 Granting of rights

The following license packages can be purchased via the Smint.io platform at varying fees:

• All Media license: Use in all media
• Below the Line License: Use in all media except TV, cinema, posters, advertisements
• Online Only License: Use in online media such as websites, blogs, social media or for internal digital use (e.g. PowerPoint presentations, intranet)

The license packages are available in the following forms:

• Enterprise License / Group License: Use within the group including its affiliated companies in accordance with AktG §§ 15 ff (Germany) or equivalent national legislation of the licensee
• Company License: Use within a company
• Team License: Limited use within a company

The following applies to all license packages:

1. Content marked as royalty-free (“RF”) is valid for an unlimited period of time.
2. For content marked as Rights-Managed (“RM”), the license is valid for a limited timeframe (1, 3 or 5 years, as chosen within Smint.io), unless the customer explicitly licenses the content for an unlimited period of time.
3. The license includes unlimited geographic / geographic use.
4. The modification and editing of the images is permitted in accordance with § 8 of these license terms.
5. Designed works may be passed on to and archived after publication by the customer and / or his client and / or contractor.
6. In the license information available on Smint.io for a specific asset (“License Details”), additional rights, obligations or restrictions beyond this granting of rights may be defined, which are mandatory.
7. Exclusive usage licenses are available upon request from the Smint.io customer service.

The following terms of use apply only to the Enterprise License / Group License and the Company License:

1. The number of users is not limited.
2. Licensed images may be archived in the company’s own DAM system within the scope of the listed types of use.
3. Advertising, communication and other agencies that license images for and on behalf of their clients undertake, by accepting these license terms, to ensure that the client accepts these license terms before passing on licensed images to their client. If the above is ensured, images that have been licensed on behalf of a client may be passed on to the respective client. Advertising, communication and other agencies that license images for and on behalf of their clients do not acquire their own right to fully use the images according to these license terms. Only the client is entitled to this right.
4. Corporate customers who hand over licensed images to their contractors, e.g. to printers, advertising, communication and other agencies, by accepting these license terms, undertake to ensure that the contractor acknowledges these license terms and use the images according to these license terms before passing on the licensed images to their contractor. If the above is ensured, licensed images may be passed on to the respective contractor. The contractor does not acquire the right to fully use the images according to these license terms. This right is only available to the corporate customer. The contractor is entitled to process the licensed images for use by the corporate customer, provided that this takes place according to these license terms. After finishing the work, the contractor is obliged to delete the original image file.

The following terms of use apply only to the Team License:

1. The number of users is limited to 10 users.
2. Licensed images may only be archived in Smint.io within the scope of the listed types of use.
3. The transfer of licensed images to a client or contractor is not permitted.

§4 Restrictions

The user/licensee is NOT permitted without the express written consent of the licensor:

1. to license, transfer and/or resell the granted rights to third parties, as well as to include license material in an electronic template intended for use by third parties in electronic media or printed matter, such as design templates for websites, presentation templates, electronic greeting cards or business cards;
2. to offer the licensed material as part of a resale product. This refers to merchandise such as calendars, posters, postcards, canvases, cups, toys, stuffed animals, sporting goods, etc. which are offered for sale;
3. to use the licensed material as part of a service brand, label or logo or to violate brand names, service brands or trademarks of others through specific use;
4. to distribute or make available licensed material in a downloadable format;
5. to share, copy or make available to third parties licensed material if the license purchased does not include this right;
6. to sell, license or distribute any products made using the licensed material in a form that allows the end user/licensee’s customers to access the licensed material or to select the licensed material as individual files.

Regardless of other provisions, the licensed material provided by the licensor may contain individual images that are not protected by copyright, are publicly accessible or for which copyright law is not known. In these cases, the licensor does not grant the user the right of use, but only grants access to the image.

§5 Releases

In principle, the licence does not include a release or permission to use depicted persons, names, trademarks or brands, buildings, decorations and artistic designs, unless the licence material is marked with the note that one or more such releases exist. This applies in particular to the use of the license material in an advertising context. It is the customer’s own responsibility to obtain the permissions or permits required for the planned use from the respective authorized parties.

Insofar as license material on or in which persons are depicted is marked with the note “Model release available”, model releases (declarations of consent) are generally available upon request from the licensor, the respective personal names being made unrecognizable to protect the privacy of the depicted persons.

As far as license material is marked with the note “Property release available”, property releases (declarations of consent) are generally available from the licensor upon request.

The publication of pictures of well-known personalities can only be made by stating their names and when used in editorial context; any conflicting legitimate interests of the person or persons depicted within the meaning of paragraph 23.2 KUG (in Germany), § 78 UrhG (in Austria), Art. 28 para. 2 ZGB (in Switzerland) and comparable regulations in the respective jurisdiction must be observed by the customer.

Unless the existence and the validity of a release have been confirmed in writing by the licensor, the user / licensee must indemnify the licensor from all third-party claims arising from the respective use of the license material. If you (the user) have been wrongly informed by the licensor due to an error that license material has been released or approved for use, although this is not the case, the scope of liability of the licensor is limited exclusively to the foreseeable and contract-typical damage amount when the contract was concluded.

§6 Licensing

The consent to this license agreement in the currently valid version is declared by clicking on the “Buy” button and is confirmed by clicking on “Buy now” in the Smint.io shopping cart.

The final licensing in accordance with this license agreement is made by full payment of the license fee to Smint.io.

§7 Copyright notice

When the contractual pictures are being reproduced, a copyright notice is to be issued (“Licensor/Name of the contributor or the photographer” as stated in the “License details” of the picture) insofar as this is customary. This note can be omitted for advertising purposes. When posting on social media networks and on company websites, a note must be made in the immediate vicinity of the license material, insofar as this is customary.

§8 General restrictions on disposal and use

Depending on their location, the customer is obliged to observe the journalistic principles of the German Press Council (press code) or comparable institutions in his country. The user or customer is responsible for accompanying text.

Any distortion or other impairment (e.g. in the form of reproduction, modification, adaptation, etc.) that is likely to jeopardize the legitimate intellectual or personal interests of the licensor or the author in the work is not permitted. Exceptions to this require a separate written agreement.

Non-tendency uses and falsifications / changes in images and words as well as uses that can lead to the degradation of depicted persons or that create a pornographic, defamatory or in any other way illegal or immoral context, are inadmissible and make the customer liable for damages; in such a case, the licensee must also keep the licensor free from any claims by the injured persons and / or other third parties.

The licensor assumes no liability for a violation of the general right of personality of depicted persons or the copyright of the authors of the license material through an use in pictures and / or text that contravenes the agreement or is misleading. In the event of such rights being violated, the customer alone is liable to pay compensation to any third party and is also obliged to release the licensor from such claims.

§9 Liability of the customer and the licensor, general exemption from liability

The licensor warrants that the customer is not impaired by copyrights, ancillary copyrights and personal rights of third parties when used in accordance with the regulations and releases the customer from any third party claims.

The licensor assumes no guarantee whatsoever, neither expressly nor through conclusive action, and excludes any guarantee for the economic usability, quality and suitability of the license material for certain purposes.

If claims of third parties are asserted due to a non-contractual use of the images (e.g. due to violation of personal rights), the customer must release the licensor from third party claims. This also applies if the license material is used in a disfiguring manner or is distorted as a result of processing and the licensor is exposed to justified claims by the author.

In the event of unauthorized use, distortion or transfer of the delivered or electronically transmitted license material, the unauthorized granting of rights to third parties or the transfer of the same to third parties, the customer undertakes, regardless of the assertion of further claims for damages by the licensor, to pay a lump sum compensation five times the usual usage fee according to the current MFM fee list. The customer is free to prove lower damages.

The parties undertake to indemnify and hold harmless the other party and its affiliates, partner agencies, distributors and licensors against all claims, demands, costs and expenses, including reasonable attorneys’ fees and court costs, resulting from any violation of the terms of this agreement, the use or modification of any works of licensed material or the combination of such works with other materials.

In the case of justified complaints, the user/licensee has the right to a replacement delivery. The user / licensee can only declare withdrawal from the contract and claim reimbursement of the license fee after subsequent performance has failed. The user / licensee is obliged to check the license material immediately after receipt and before any further use. Justified complaints are to be communicated in writing within one week after receipt of the license material to the user / licensee and upon request by the licensor within another week. Justified complaints regarding any hidden defects must be reported in writing within ten working days of discovery. If a timely notification is omitted, the licensor is not liable for any damage that has already occurred or is occurring.

If your information provided as a user / licensee does not correspond to the actual use, the usage agreement is deemed not to have been granted. In this case, the licensor is to be released from claims for damages by third parties. The same applies if your personal data is not given truthfully.

The licensor is only liable to the user / licensee from the breach of obligations that are not essential contractual obligations, only in the event of gross negligence or in the event of intent. This does not apply to claims for injury to life, limb or health. Compensation for any indirect damage is excluded.

The amount of liability of the licensor is limited to the amount of damage that was foreseeable and typical for the contract when the contract was concluded.

§10 Regulations on third party platforms

When posting images on social media services, the maximum resolution must not exceed 1,200 pixels per largest dimension.

§ 11 Miscellaneous

No verbal ancillary agreements have been concluded. Changes and amendments to these license conditions must be made in writing.

Should provisions of these license terms be wholly or partially not legally effective or not feasible, or should lose their legal effectiveness or feasibility later, the validity of the remaining provisions will not be affected.

The same applies as soon as it turns out that the license terms contain a loophole. In place of the invalid or unenforceable provisions or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes as close as possible to what the parties to the contract wanted or would have wanted according to the meaning and purpose of the contract, if they had considered the point when concluding this contract or when subsequently adding a provision.

These license terms also govern the use of royalty-free images (EULAs) from all image suppliers of the licensor. If the provisions contain regulations on license-free images, these apply both to the licensor’s own images and to the license material of all image suppliers of the licensor.

General terms and conditions of the customer and the licensor as well as purchase conditions of customers are excluded.

§12 Place of jurisdiction and choice of law

These license terms are subject to German Law. The place of performance is Munich. The place of jurisdiction for all disputes arising from or in connection with this contract is Munich. However, the licensor is entitled to sue the licensee at his place of business.