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Upload conditions
General contract provisions

for uploading product photographs and using reference image paths to the eCl@ss reference image library

Introduction:

IW Consult GmbH ( „IW-C“ ), in cooperation with eCl@ss e.V., runs and markets the commercial eCl@ss-reference image library ( „Reference image library“ ). Companies can bid on i.e. acquire reference image library paths for product photographs i.e. product images, which are being marketed by IW-C in cooperation with various internet and intranet platforms ( “Multiplicators” ).

By acquiring the right to use the reference image path, the User agrees to the validity of the following user conditions.

1 Contractual object / Contractual purpose / Upload period

1.1 The object of this contract is a fee-based upload of product photographs i.e. product images („Product photographs“ ) in the reference image library by IW-C on behalf of a User ( hereafter called „Uploader“ ) allowing their free of charge distribution via various communication and information media, in particular the internet and intranet, by IW-C, multiplicators and other third parties.

1.2 The reference image library serves to pass uploaded product photographs on to multiplicators and other third parties so they may use and distribute these free of charge, thus improving the advertising impact of the Uploader. The Uploader is given the opportunity to have his product photograph displayed as an eCl@ss reference image ( „Reference image“ ), without time limitation but as a rule for at least two years i.e. in individual cases for an agreed minimum period, during product or product category searches in commercial or non-commercial internet or intranet portals and other communication and information media; at the same time linking the User of these media with the respective product or product category ( hereinafter named "contractual purpose" ).

1.3 If no individual time periods have been agreed, the product photograph shall be stored in the reference image library for at least two years, so it can be used by multiplicators (“Upload period” ). The upload period starts on legal acceptance of the bid during the auction ( provided there are no deviating individual agreements ).

2 Upload, update and exchange of product photographs, no transfer

2.1 Immediately after having acquired the reference image path and receipt of the invoice, the Uploader shall submit a suitable product photograph to IW-C for upload purposes.

2.2 Suitable are only product photographs of products that can logically and without any doubt be allocated to the product class required by the Uploader and meet the technical and content-requirements in accordance with paragraph 8 below.

2.3 In principle, a later update i.e. exchange of an already uploaded product photograph request-ed by the Uploader within the upload period is possible with the approval of IW-C and against compensation of expenses. In any case, the new product photograph has to meet product photo requirements in accordance with paragraphs 2.2 and 8.

2.4 Transferring acquired reference image paths rights or entrusting third parties with reference image paths is not permissible without prior written approval by IW-C.

3 Uploader’s obligations

3.1 The Uploader is obliged to pay the fee owed for acquiring user rights of the reference image path in question.

3.2 The Uploader is also obliged to use the reference image path by submitting a suitable product photograph to IW-C.

3.3 Should the Uploader, following acquisition of the reference image path and his failure to meet the requested deadline by IW-C, not submit a product photograph or suitable product photo-graph as referred to in paragraphs 2.2 and 8, IW-C shall be entitled, without prejudice to other legal provisions, to cancel the contract with the Uploader without notice. Following cancellation by IW-C, the reference image path concerned may be put on offer again and passed on to third parties.

3.4 In the case of an immediate cancellation and in accordance with paragraph 3.3, IW-C shall be entitled to a fixed compensation amounting to 100 EUR including legal purchase tax. It is up to the Uploader to prove that in certain cases the allocated amount is considerably lower.

3.5 The advance payment already made for the agreed upload period shall be reimbursed on a pro rata basis for the period following cancellation, taking the compensation amount as re-ferred to in paragraph 3.4 into consideration.

4 IW-C Services

4.1. The suitable product photograph submitted by the Uploader shall, during an eCl@ss search, be linked with the corresponding product class involving the latest eCl@ss standard update and displayed as a reference image in the reference image library.

4.2 Supported by eCl@ss e.V., IW-C engages in marketing and offering the contents of the refer-ence image library to multiplicators (e.g. search engines, market places, online communities, trade portals and other internet platforms as well as intranet providers and other communica-tion and information media), in order to have the reference images used by as many multipli-cators as possible and to generate links during eCl@ss searches i.e. direct links to the refer-ence images. At the same time, IW-C or eCl@ss e.V. conclude cooperation agreements with multiplicators.

5 User rights

5.1 The Uploader grants IW-C the non-exclusive, sublicensable and not by time or locality limited right to use the product photograph uploaded in the reference image library for the following purposes within the framework of the contractual goal. The granting includes to use the imag-es for both editorial and commercial purposes.

5.2 The granting of the sublicensable rights mentioned below is a requirement that basically al-lows IW-C to provide its services, i.e. store the product photographs in the reference image li-brary so they can be distributed for advertising purposes following paragraph 4 of these up-load conditions in as many technical and legally permissible ways as possible. Therefore, the granting particularly involves the following user rights:

5.2.1 The duplication and distribution right i.e. the right to distribute and duplicate the product photograph within the framework of the contractual goal by duplication and distribution on any type of analogue and digital image/sound/data carriers (e.g. CD, DVD, USB sticks, memory cards etc.)

5.2.2 The retrieval and online right, which means the right to make the product photograph public-ly available, also for download, by means of analogue, digital or other storage or remote data transfer technology; with or without local caching, through wired or wireless communication.

5.2.3 The right to public communication, which means, the right to publicly communicate the product photograph in a non-physical format, in particular to transmit it using any technical procedures, to list, to demonstrate, to make publicly accessible, to play back either through visual or audio devices and radio programs and make reproductions based on public accessibility publicly noticeable.

5.2.4 The right to print, which means, the right to use the product photograph for production, duplication and distribution of printed matter.

5.2.5 The videogram right, which means, the right to evaluate the product photograph by duplica-tion and distribution on any type of analogue and digital image/sound/data carriers (e.g. CD, DVD, USB sticks, memory cards etc.).

5.2.6 The advertising right, which means, the right to use the unchanged product photograph for advertising purposes, e.g. in the internet (e.g. pop-ups, advertising banners etc.), for program previews, on TV, in print (advertisements, posters etc.), for added value telephone services and not exclusively limited to the aforesaid advertising formats.

5.2.7 The processing and transformation right i.e., the right to change the product photo within the framework of the contractual purpose, while respecting the artistic integrity of the Uploader and exclusively in terms of image size, colour, contrast and brightness values, as well as the right to convert colour information under the aforementioned conditions. IW-C is also entitled to add the eCl@ss logo or similar logos as well as eCl@ss identifiers and/or code numbers and other descriptions (also including digital watermarks and/or linked to so-called mouse-over effects).

5.2.8 The database and archive right, which means, the right to archive the product photograph in any form, to store it on any known analogue and digital storage medium together with other work or components, to include retrieval software and use these data as far as covered by the contractual purpose.

6 IW-C obligations, liability

6.1 IW-C is obliged to ensure, by means of user and license conditions that reference image Us-ers (multiplicators)

  • only use each reference image in connection with the display and illustration of prod-ucts, product groups or product functions that meet the product depicted in the refer-ence image with regard to type, quality and/or function, whereas in doubtful cases the eCl@ss standard shall be decisive.
  • ensure that actual use of the reference image is neither misleading or dishonest and that its use does not violate the Competition Law in any way or infringes upon other ap-plicable Acts or third party rights,
  • exclusively use the reference images for contractual purposes and fact- and content-based illustration purposes,
  • do not use the reference images in any shape or form that might disadvantage or dam-age the manufacturer of the product depicted in the reference image in any way.

6.2 IW-C, however, does not accept any liability regarding actual use of the product image by multiplicators or other third parties. The Uploader is aware that actual use, usage scope as well as retransmission of the product image by multiplicators or other third parties cannot be checked nor monitored by IW-C. Usage of product photographs outside the reference image library, even after expiry of the upload period, as well as any third party usage in connection with other likely unlawful contents, does not imply any contractual violation or legal infringe-ment by IW-C vis-à-vis the Uploader.

6.3 The Uploader, should he become aware of illegal use of the product photograph by third par-ties during the upload period, shall inform IW-C accordingly. The parties shall agree on suita-ble action to be taken against this third party. The Uploader, when taking action against this third party, shall be adequately and reasonably supported by IW-C.

7 Uploader liability, indemnity

7.1 The Uploader assures that inclusion of the product photograph in the reference image library and its continued use and distribution does not conflict with third party rights, copyright laws, trademark laws or other commercial property rights. The Uploader assures that with regard to contractual use he has obtained, where appropriate, transferable rights from third parties, in particular from photographers or photo agencies.

7.2 In individual cases, it is the Uploader’s sole responsibility to obtain required third party approval for contractual use and distribution of product images. The Uploader assures, in particular, that he has settled any copyright compensation for the graphic material (photographers) and guarantees that such copyright does not oppose its contractual use, even without copyright.

7.3 Upon initial request, the Uploader indemnifies IW-C and/or their cooperation partners against any third party claims, including the costs involved in asserting legal rights, should they be held liable by copyright originators, photo agencies or other third parties in connection with in-fringement of their copyright to product photographs i.e. the products they depict.

8 Content and technical requirements of product images

8.1 For the product photograph to be used as a reference image, it has to meet the following content requirements:

  • The product image has to have a direct reference, content-wise, to the eCl@ss class to which it is to be allocated.
  • The product photograph is to show a product typical for that class and to display the overall product (not just details).
  • The product photograph is to have a white background. Anything not directly related to the product itself, can be used as a background. Frames are not allowed.
  • The product photograph may contain manufacturer’s details (e.g. logo printed on the product itself or on the product image).
  • The product photograph is not to include any copyright information.

8.2 For the product photograph to be used as a reference image, it has to meet the following technical requirements: These can be found HERE.

9 Expiry of upload period

9.1 IW-C is entitled (but not obliged) to delete the product photograph from the reference image library after expiry of the upload period and make the reference image path again available for acquisition.

9.2 Should, during the upload period, the product photograph be found unsuitable as a reference image, for instance, because the corresponding eCl@ss class is being withdrawn on account of an eCl@ss release development or linked with another class and as such can no longer be displayed in the reference image library or properly linked to it, then IW-C is entitled to remove the product image prematurely. In such cases, the Uploader shall be informed immediately and compensated immediately pro rata temporis for the fee already paid for the remaining up-load period.

10 Final provisions

10.1 German law is applicable. Cologne is the exclusive legal venue for any disputes arising from or in connection with this contract. The same applies, if the Uploader does not have a general legal venue in Germany or if his residence or usual abode is not know at the time the com-plaint is filed.

10.2 The validity of the remaining user conditions shall not be affected, should certain provisions of these user and license conditions, either as a whole or in part, not be legally effective or no longer legally valid.

As of: May 15th 2012


Marketing with eCl@ss