Last updated: December 2008
1.1. The website “cramers-gallery.com” and the services associated with it are a product owned by the firm Cramers Gallery of Nature Sagl (“Cramers Gallery”). Cramers Gallery operates on said website a portal that enables users to purchase licences for copyrighted, digitized image material (“image material”) online.
1.2. All business dealings between Cramers Gallery and the licence purchaser (“the Purchaser”) are governed exclusively by the Terms and Conditions set out herein below (“Cramers Gallery Terms and Conditions”). The Cramers Gallery Terms and Conditions also apply in cases where services provided on the Cramers Gallery website are accessed or used from locations outside Switzerland.
1.3. By registering on the “cramers-gallery.com” website, the Purchaser expressly agrees to be bound by the Cramers Gallery Terms and Conditions in force at the time of registration.
1.4. The Cramers Gallery Terms and Conditions take precedence over the Purchaser’s terms and conditions. No provisions of the Purchaser’s terms and conditions which are in conflict with the Cramers Gallery Terms and Conditions shall be recognized and/or form part of the contract between the Purchaser and Cramers Gallery unless expressly approved in writing by Cramers Gallery.
2. Online image service
2.1. Cramers Gallery provides free access to the “cramers-gallery.com” online image database. Users may use the online image database in order to search for images from among the image material therein.
2.2. The Purchaser may purchase licences online for uses of images searched for and found on the database that extend beyond searching and viewing. During the ordering process for purchasing the required licences, the Purchaser will once more be prompted to indicate acknowledgement and acceptance of the Cramers Gallery Terms and Conditions and will be unable to complete the ordering and payment process without doing so. To acquire a licence, the Purchaser must first conclude a licence agreement with Cramers Gallery and remit payment of the corresponding licence fee to the bank account specified by Cramers Gallery. To conclude a licence agreement with Cramers Gallery, the Purchaser must fill out the online order form completely and correctly and select the scope of use s/he requires in respect of the images ordered. An agreement for the acquisition of the required licence shall not be formed until Cramers Gallery has sent confirmation of the scope of use and any other relevant matters via email. Once the agreement has been concluded and Cramers Gallery has received payment of the licence fee, Cramers Gallery shall transfer the licence and corresponding rights of use to the Purchaser by emailing to the Purchaser the specified image material as a .TIF file.
2.3. The quality (size, resolution etc.) of each image is set out in the description of that image. Quality may vary from image to image. Variations in the quality of the images sent via email are therefore normal and do not constitute defects.
2.4. Cramers Gallery gives no undertaking whatsoever that its image database will be available to the Purchaser at all times. Cramers Gallery reserves the right at any time to switch off the database server temporarily or permanently and to modify, delete or supplement the content stored on it.
3. Licensing terms and conditions
The image material is protected by copyright. Notwithstanding any compensation and/or other costs or consideration paid, nothing shall constitute or have the effect of a transfer of ownership or copyright in the image material. The following licensing terms and conditions shall apply:
3.1. With the sole exception of research on the image database at “cramers-gallery.com”, all uses of the image material are copyrighted uses for which licence fees are payable.
3.2. All licences sold to the Purchaser are non-exclusive, non-transferable, one-time-use licences for the specified image material.
3.3. Exclusive licences, rights of exclusivity in media or geographic territories and embargo periods are possible only by special agreement with Cramers Gallery.
3.4. The rights transferred by Cramers Gallery in delivering the image material are strictly limited to a licence for the one-time use of the image material. The Purchaser can select and specify the purpose and scope of use covered by the licence using the online order form. Any uses over and above the scope of use require a separate enquiry by the Purchaser and will be decided on separately by Cramers Gallery.
3.5. The purpose and scope of use specified in the licence permit the Purchaser to undertake those copyrighted uses (reproduction, distribution, making available to the public etc) that are necessary in order to achieve said purpose and scope of use.
3.6. Any use, exploitation, reproduction, distribution or publication that falls outside the purpose and scope of use described in clause 3.4 hereof shall require payment of additional fees and shall require the prior, written approval of Cramers Gallery. This applies in particular to, but is not limited to, the following:
- any secondary use/ exploitation or secondary publication, especially in anthologies, brochures accompanying products, advertising or other forms of reprint;
- any editing of, changes to, or transformation of the image material;
- any digitization, storage or duplication of the image material on data media of any kind (e.g. magnetic, optical, magneto-optical or electronic media such as CD-ROM, CDI, floppy diskettes, computer hard drives, computer memory, microfilms etc.) that exceeds the scope of technical processing permitted under clause 3.5 hereof;
- any reproduction or use of the image material on CD-ROM, CDI, floppy diskette or similar data media;
- any communication of the image material via the Internet or in online databases or other electronic archives; and
- any passing-on of the digitized image material via electronic data transfers or data media that can be used for communicating the image material to the public on screens or monitors or can be used for the making of hard copies.
3.5. Any alteration of the image material by means of photo composing, montage or electronic tools to create a new, copyright-protected work requires the prior written approval of Cramers Gallery.
3.6. The Purchaser may not transfer the licence rights or any part thereof to third parties. ‘Third parties’ includes other companies in the same corporate group as the Purchaser and subsidiaries of the Purchaser.
3.7. Each use, communication or passing-on of the image material must be accompanied by the copyright notice stipulated by Cramers Gallery.
3.8. If the Purchaser publishes the image material, then the Purchaser shall without delay and of its own accord send a courtesy copy of the publication to Cramers Gallery free of charge.
4. Licence fee
4.1. The licence fees applicable are those published at “cramers-gallery.com”. The licence fees stated are net amounts; that is, the Purchaser must calculate and add the applicable VAT amount.
4.2. The licence fee applies only to the one-time use of the image material for the purpose and in accordance with the scope of use specified in clause 3.4 or 3.3 hereof. The licence fee does not apply to any additional use or uses unless agreed on in writing between Cramers Gallery and the Purchaser.
4.3. The Purchaser’s right to use the licensed image material commences when the corresponding .TIF file is transferred via email and is conditional on payment of the licence fee.
4.4. Cramers Gallery shall be under no obligation to refund the licence fee in the event that the Purchaser ends up not publishing or using the licensed image material.
4.5. The licence fee is due and payable as soon as the image ordering process has been completed shall be remitted in full, and without any discount, deduction of set-off, to the bank account nominated by Cramers Gallery.
4.6. If a direct debit in favour of Cramers Gallery is returned or dishonoured, then Cramers Gallery shall have the right to bill the Purchaser €50.00 to cover the costs ensuing from this, but only if the return or dishonouring of the direct debit was caused by the Purchaser.
5. Damages and indemnity
5.1. For each instance of unlicensed use, processing/editing, transformation or passing-on of the image material, Cramers Gallery shall have the right to claim payment of a penalty equal to 150% of the licence fee unless the Purchaser demonstrates either that Cramers Gallery has suffered no loss at all or that the loss suffered is substantially less than the penalty. This is without prejudice to any other claims for damages or compensation that Cramers Gallery may have.
5.2. The Purchaser holds harmless and indemnifies Cramers Gallery from any third-party claims that may arise from any instance of unlicensed use, processing/editing, transformation or passing-on of the image material.
6. Liability on the part of Cramers Gallery
6.1. Cramers Gallery shall be liable, without limitation, for all loss or damage resulting from the absence of a warranted characteristic or caused intentionally or grossly negligently by Cramers Gallery.
6.2. Cramers Gallery shall be liable, without limitation, for all loss of life, personal injury or impairment of health sustained as a result of ordinary negligence on the part of Cramers Gallery. If due to ordinary negligence Cramers Gallery should be in default of its obligations; if it has become impossible for Cramers Gallery to perform its obligations; or if Cramers Gallery is in breach of a material contractual obligation, then Cramers Gallery shall be liable for the resulting damage to property or pecuniary loss only to the extent that said damage or loss was reasonably foreseeable at the time when the contract was entered into.
6.3. If Cramers Gallery is in default of its obligations, then it shall by virtue of said obligations also be liable, without limitation, for loss or damage caused by chance events unless said events would have occurred even if Cramers Gallery were not in default.
6.4. Cramers Gallery hereby excludes liability for all other losses or damage. Excepted from this exclusion is liability under Germany’s Product Liability Act (Produkthaftungsgesetz).
7. Right of cancellation and return
In accordance with subparagraphs 1 and 2 of § 312d(4) German Civil Code (BGB), once the image material has been transferred to the Purchaser, the Purchaser has no right to cancel the agreement and return the image material because the image material by its very nature is not something that can be returned once it has been delivered.
8. Data protection
All data provided to Cramers Gallery by the Purchaser shall be processed in accordance with Germany’s Data Protection Act (BDSG). The Purchaser shall treat as strictly confidential all data provided to it by the Purchaser. Cramers Gallery may collect, store and process personal data only for the purpose of performing its contractual obligations to the Purchaser.
9. Final provisions
9.1. All contractual relations between Cramers Gallery and the Purchaser are governed by the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN CISG) and the rules and principles governing the international conflict of laws are hereby expressly excluded.
9.2.If the Purchaser is a commercial business operator (Vollkaufmann), then the court with territorial jurisdiction for the place in which Cramers Gallery has its registered office shall be the sole legal venue for all present and future claims arising out of or in connection with the business relationship between the Purchaser and Cramers Gallery, including all claims in debt enforcement proceedings. The same legal venue shall apply
if the Purchaser is not domiciled in or does not have his/her habitual place of residence in Switzerland and is therefore is not covered by a court of territorial jurisdiction in Switzerland;
if the Purchaser changes his/her domicile or habitual place of residence to a location outside Switzerland after the agreement has been entered into; or
if the Purchaser’s domicile or habitual place of residence is unknown at the time when legal proceedings are instituted.
The statutory provisions governing legal venue (jurisdiction) shall apply in all other respects.
9.3. Any agreements additional or collateral to the Cramers Gallery Terms and Conditions must be in writing in order to be valid.
9.4. If any provision of the present Cramers Gallery Terms and Conditions should be or become invalid or unenforceable, then the affected part shall be severed and the remaining provisions shall remain valid and enforceable. Cramers Gallery and the Purchaser shall cure each such invalid or unenforceable provision by substituting in its place a valid and enforceable provision which as nearly as possible approximates the commercial and intent of the invalid or unenforceable provision.