Terms and conditions of use

Terms and conditions

Terms and conditions of use Smarterpix

Date: 1st of March 2021

Scope

1.1 Panther Media GmbH operates smarterpix.com (hereinafter “Smarterpix”) and offers content, for example, but not limited to, photographs, videos, illustrations, drawings (hereinafter “content (s)”), to members for licensing.

1.2 Members are, on the one hand, photographers, illustrators and other artists (hereinafter collectively referred to as “authors”), on the other hand, image users or partner companies who register with Smarterpix (hereinafter referred to as “customers”). The authors and customers are herein referred to collectively as “members”.

1.3 The following terms of use together with the data protection notice regulate the conditions under which the services offered by Smarterpix can be used by members or visitors. The prerequisite for access and use of the service is the consent of the member and compliance with these terms of use. When a member accesses or uses the website, the member or visitor to the website declares that they agree to these terms of use and confirms having read the data protection notice. If these terms of use are not accepted, use of the service must be stopped immediately, including in part.

1.4 By registering with Smarterpix, the member expressly agrees to these conditions. For the registration it is necessary that the member confirms these terms of use by ticking the checkbox with “Yes”.

1.5 The member acknowledges having read, understood and accepted the terms of use. These terms of use and contracts apply exclusively to all members who register on the Smarterpix website, even if they are used or accessed from outside the Federal Republic of Germany.

1.6 Smarterpix is entitled to change the content of these terms and conditions with the consent of the members, provided that the change is reasonable for the members, taking into account the interests of Smarterpix. Smarterpix will notify the members of the change to the terms of use by email to the address provided by the member at least 2 weeks before the change.

1.7 Consent to the change in the terms of use is deemed to have been given unless the member objects to the change or terminates the contract within one month of receipt of the change notification. Consent to the changes to the terms of use is also deemed to have been given if the service continues to be used after the changes come into force.

1.8 Smarterpix undertakes to inform the members about the possibilities of objection and termination, the deadline and the legal consequences, in particular with regard to omitted advice of right to objection, in the notification of the changes.

1.9 In the event that the member objects to a change in the terms of use, Smarterpix has the right to extraordinary termination of membership.

1.10 Smarterpix can transfer its rights and obligations under this contract to a third company (such as a foreign company or an affiliated company) (transfer of contract). In the event that the contract is assigned, the member has the right to terminate the contract with effect from the date on which the contract was taken over.

1.11. Regulations deviating from these terms of use, in particular terms and conditions of the members, are hereby expressly rejected. If the member does not accept these conditions, the website may not be used.

Services

2.1. The services made available on Smarterpix include the ability to post different content from members on Smarterpix and to rate or comment on the content. There are also competitions. Separate competition conditions apply for these. The functions made available differ depending on the membership.

2.2. Smarterpix offers the option of searching for content, obtaining rights of use to the content posted in accordance with the license conditions in this contract, and downloading the content.

2.3 The prices of the rights of use or memberships are regulated in the price overview. Smarterpix content is offered free of charge. Chargeable content from PantherMedia within the Unlimited membership is marked as such.

Registration

3.1. Basically, parts of the Smarterpix offer can be used without having to register. Unregistered users (hereinafter “unregistered users”) agree to these terms of use by using them, but receive only limited functions.

3.2 In order to make content available to Smarterpix for exploitation or to use extended functions, to receive license certificates for downloaded content or to be able to actively participate in the interaction, registration on Smarterpix is required.

3.3 By sending the data in the registration form, the member makes an offer to Smarterpix to conclude a usage contract for the multimedia platform. Smarterpix reserves the right to refuse the registration of the member without giving reasons – even afterwards. In particular, authors agree to a review (verification) of idenity and actively collaborate on this. As soon as Smarterpix accepts the offer to register the member, the member receives a confirmation email with the registration data and an activation link. Upon receipt of this confirmation email, the user contract for the multimedia platform is concluded between Smarterpix and the member.

3.4 Depending on the membership, a payment partner (e.g. PayPal) must be selected in order to verify the identity of the author or to collect the Unlimited membership fees.

3.5 As soon as a credit is to be paid out, the bank details must be given and the preferred payment method must be selected (e.g. bank, PayPal). In the case of existing sales tax liability, the tax number or, if available, the VAT ID number must also be specified.

3.6 With the conclusion of the contractual relationship for authors, content for Smarterpix can be uploaded. The upload procedures and photo upload guidelines marked on the page must be followed.

3.7 The member is obliged to fill in the fields provided in the registration form truthfully and correctly. Successful registration is only possible if the mandatory fields have been completed in full. In the event of a change in the data collected after registration, the member must update the information in the member account immediately.

3.8 Usernames that violate the rights of third parties, in particular trademark rights or naming rights, are not permitted. Illegal or morally offensive user names and internet addresses (URLs) are also not permitted.

3.9 Only fully legally competent members or those who act with the consent of their legal representatives are authorized to use the site. People who have not reached the age of 18 are not allowed to participate.

3.10 Members have to keep their access data, i.e. username and password, carefully. It must also be ensured that this data is never made available to third parties. Smarterpix assumes no liability for damage caused by access data that has got into the hands of third parties. If there is any suspicion of misuse of this data, Smarterpix must be informed immediately. Smarterpix will never ask members for their password.

Granting of rights when uploading content

4.1 The author transfers to Smarterpix all non-exclusive, free of charge, transferable rights of use (i.e. with the right to sub-license) to the uploaded content, without restriction in terms of content, time and space.

The transfer takes place in order to grant third parties the following free usage rights (see 4.2), to use the content ourselves free of charge and to transfer usage rights in whole or in part to other photo agencies or sales partners (hereinafter collectively referred to as “partners”) for the purpose of free distribution. Smarterpix can also transfer the granted rights of use in whole or in part to a third company (such as a foreign company or an affiliated company).

4.2 The transfer of the rights of use extends to all currently known and still unknown (future) types of use and, in addition to the right to edit, also includes digitization, duplication, distribution, exhibition, demonstration, broadcast, making publicly available and public reproduction through image / sound / data carriers, as well as the right for the commercial exploitation of the content through the production and distribution of goods of all kinds (e.g. posters, calendars, dolls, games, toys, stuffed animals, sporting goods, household, bathroom and kitchen goods, items of clothing, printed matter including comics, sound carriers, headgear, buttons, etc. .), in particular interactive and multimedia products (e.g. computer games). The content may be digital or analog in all suitable media (e.g. online use of any kind, social media, any print use, TV, cinema, theater, videograms (CD, DVD, etc.), interactive and multimedia Usage, etc.) and stored in databases, even if they are accessible online.

4.3 The author consents to all licensing of the content made available by him without stating his name (i.e. anonymously). The author expressly waives his right to be named.

4.4. Assurance

4.4.1 By uploading content, the author guarantees that he is entitled to grant all rights of use that are to be granted under this agreement and that he has not yet granted any rights of use to content that could contradict the present agreement. The author releases Smarterpix from all claims by third parties, including any procedural costs, which have arisen as a result of the culpable violation of these terms of use.

4.4.2 The author also guarantees that the content to which he transfers the rights of use to Smarterpix does not violate copyrights, trademark rights, the right to privacy, publicity rights or other rights of third parties (including in particular copyrights, related rights, intellectual property rights, naming rights, Personal rights, rights to one’s own privacy, data protection rights or other property rights) or insult or discredit third parties.

4.4.3 Model and property release: To the extent that the content contains images of people or groups of people (models) or representations of third-party property (property), the author guarantees that he has obtained an effective and legally binding release declaration from all recognizable persons and/or from the respective owner of a property with regard to the use of the image, the content of which essentially corresponds to the declaration stored at the Internet address and which allows the use of the content as described in this license agreement. When uploading, the author truthfully declares the existence of such a document. Verification of releases is not carried out by Smarterpix.

4.4.4 The author hereby authorizes Smarterpix to take action against any infringement of copyrights and licensing with regard to the content uploaded by the author. The author will not commission any other lawyers or legal service providers to enforce these rights until the end of this contract. Smarterpix is therefore entitled to take appropriate measures to enforce the rights of the author. For this purpose, Smarterpix will commission a lawyer or a law firm on behalf of the author to enforce the rights of the author. The author has to participate in the judicial and extrajudicial enforcement of these rights. This includes, among other things, the sending of the original documents or other documents, as well as all other further declarations or documents to be created that are necessary or useful for the enforcement of the rights.
Smarterpix will only receive remuneration for the lawyer’s or law firm’s mediation service and its own damage incurred in the event of success. This means that compensation is only due if the author is actually awarded compensation in the course of judicial or extrajudicial proceedings – e.g. also in the context of a settlement. In the event that compensation is successfully enforced, Smarterpix will receive 50% of the compensation obtained for the author, minus legal prosecution costs.

4.5. Profit sharing

Smarterpix intends to allow the authors to participate in the success of the platform for the provision of the content. The number of downloads or the uploads relative to the total number of free content by the respective author of the content is taken into account. There is no entitlement to remuneration.

License Terms

5.1 Smarterpix grants a non-exclusive license, unlimited in time and place, to use the content for the permitted uses in accordance with the following provisions. The license is valid for a single user. If a right of use is to be exercised by a company (legal person or corporation), only the representative specified during the download (registered member) is entitled to use the content or the representative specified as part of the Unlimited membership. This means that the licensed content may only be available to one or (with Unlimited memberships) the representatives. Please note that seat / user restrictions apply. You may only use the content with an appropriate number of seats / users. Unlimited content may only be used by Unlimited members. Unregistered users may not download or use content on behalf of a legal person.

5.2 The content may not be used by means of digital asset management systems, shared storage media or the like for the purpose of joint use or transmission of this content, unless the common users are all entitled to the content as part of the Unlimited membership to access.

5.3 Disclosure:
(a) In principle, the license is not transferable.
(b) Exception: The right to use the content may only be transferred to a single third party, provided that the transfer takes place in the context of the fulfillment of a customer project, e.g. by an advertising agency. In this case, only the right of use within the scope of the end product created for the customer (e.g. brochure) is transferred. Repeated use in projects of different customers is not permitted. In this case, an additional license must be transferred for each customer (additional download).

5.4 Purpose:
(a) The content may be used by the customer in all media (e.g. online use of any kind, social media, print use, TV, cinema, theater, videograms (CD, DVD, etc.), interactive and multimedia use, etc. .) are used with the restriction that it is not the basis or the main component of the product or template distributed by the customer. This restriction only applies in the event that the content is offered as part of a resale product (resale product = merchandise that is not given free of charge but is offered for sale, such as calendars, posters, postcards, canvases, mugs, toys, stuffed animals, sporting goods Household, bathroom and kitchen goods, clothing, illustrated books, website, email or print templates, etc.; uses of images for advertising and sales promotion are covered by this Royalty Free Standard license).
(b) If the content is marked with the addition “only for editorial purposes”, the use of the content is only permitted for editorial / editorial purposes (e.g. reporting, teaching material). Use of such images on websites with the character of customer magazines, customer magazines or similar uses is not permitted.

5.5 Modification rights: The content may be changed as long as it can be assumed that the changes will not result in any disadvantages for the author, the model shown or other third parties, e.g. B. encroachment on moral rights, damage to reputation, property rights. In no case may the content be distorted by editing.

5.6 Authorization: When content is used, it is mandatory to indicate the author. This is to be named in the following form: “© smarterpix.com/Name of the author”. For online use, the copyright must also be linked to the image on https://smarterpix.com. The corresponding link and notice will be made available as source code when downloading.

Unlimited members are not required to name the author, unless it is required by other laws. This applies in particular to any editorial use.

5.7. The Smarterpix content may not be used

(a) for pornographic, sexist, defamatory, slanderous, racist, minority or religiously offensive depictions

(b) in a way that disparages the author or the person depicted or if it can be assumed that the author or the person depicted may not agree to the publication (despite the existence of a so-called model release = declaration of release). For clarification: This applies, for example, to all images that depict a person in a potentially personality-damaging situation or sensitive context, including sexual or implied sexual acts or preferences, drug use or abuse, crimes, physical or mental abuse, suffering, or political opinions or any other situation that would justifiably likely be offensive to any person represented in the content (e.g. dating sites, escort services, erotic offers, pornographic offers, pages harmful to minors, political portals / advertising). In this case, the express written consent of the person concerned must be obtained via Smarterpix (for a flat fee).

(d) For unauthorized communication measures, neither directly nor indirectly (e.g. spamming)

(e) for other unauthorized acts

(f) for distribution or sale on other image platforms, including image agencies, poster, canvas or other photo product pages, neither digitally nor as a physical product.

(g) for print runs the following applies. Not more than

– 50 copies for unregistered users
– 2.000 copies for registered users
– 50.000 copies Unlimited users.

(h) as a resale product or template without the acquisition of a qualifying Extended License from PantherMedia.

Membership, License, and Credit Payments

6.1 Payment can be made in various ways (e.g. by transfer, direct debit, credit card, PayPal). The respective prices at the time of the order apply. Smarterpix reserves the right not to allow all payment options in individual cases.

6.2 The transaction currency for credit cards is euros. Smarterpix does not accept credit cards from the following countries: Cuba, Iran, Iraq, Liberia, Libya, Myanmar (Burma), North Korea, Sierra Leone, Sudan and Syria.

6.3 The rights of use to Unlimited content are transferred in accordance with the respective license at the time the order process is completed. This transfer is subject to the condition subsequent of the payment of the membership or license fee due within the payment period stated on the invoice. The decisive point in time for compliance with the payment deadline is receipt of payment by Smarterpix.

6.4 In the event of late payment, the rights of use expire. The customer’s obligation to pay remains unaffected.

6.5 Upon payment, the rights of use will be granted again retroactively at the time of the first transfer.

6.6 If the customer does not publish or use the content, Smarterpix is neither obliged to take it back nor to repay the license fee. The same applies to unused credit or unused downloads of whatever kind.

Cancellation policy

7.1 Right of withdrawal
You have the right to withdraw from this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day the contract is concluded. In order to exercise your right of withdrawal, you must contact us (Panther Media GmbH, Rüdesheimer Str. 11, 80686 Munich, Tel .: +49 (0) 89/2000 213-0, email: buchhaltung [at] Smarterpix.com) by means of a a clear declaration (e.g. a letter sent by post, fax or email) of your decision to withdraw from this contract. You can use the attached model withdrawal form for this purpose, but this is not mandatory. To meet the cancellation deadline, it is sufficient for you to send your notification of exercising your right of cancellation before the cancellation period has expired.

7.2 Consequences of withdrawal
If you withdraw from this contract, we will have given you all payments that we have received from you, including delivery costs (with the exception of the additional costs that result from choosing a different type of delivery than the cheapest standard delivery offered by us have), to be repaid immediately and at the latest within fourteen days from the day on which we received notification of your cancellation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless something else was expressly agreed with you; In no case will you be charged any fees for this repayment.

7.3 Special notice
The customer expressly agrees that Panther Media GmbH will begin executing the contract before the withdrawal period has expired. The customer is aware that he loses his right of withdrawal by giving his consent at the beginning of the execution of the contract.

7.4 Sample withdrawal form
If you want to cancel the contract, please download the sample cancellation form, fill it out and send it back to us:
Download sample withdrawal form

Responsibility, Prohibited Content and Prohibited Use

8.1. The website may only be used for legally permitted purposes.

8.2 The service offered by Smarterpix may not be used to distribute defamatory, pornographic or otherwise illegal material, to threaten or harass others or to violate the rights (including personal rights) of others.

8.3 The use of the service in a way that adversely affects the availability of the database or other Smarterpix service for other members is also prohibited. The members are responsible for ensuring that the content they post is free of viruses, worms, Trojans or other programs that could endanger or impair the functionality or the existence of Smarterpix or the websites of the members.

8.4. It is forbidden to publish content or forum posts of the following types on Smarterpix:

Any mention of member or customer data (name, company, website, earnings, etc.).
Offensive content of any kind.
Name discrimination or defamation (personal insult) of users (or their content), Smarterpix or their partners.
Reputation damaging or defamatory contributions towards other members, Smarterpix or their partners.
Public request to delete content, comments or members.
Quotes from private emails / messages from other members, Smarterpix or their partners (= violation of postal secrecy).
Advertising for competing websites (e.g. picture agencies, picture platforms and / or photo communities)
Pursuit of political or ideological objectives (in particular using symbols or signs, as well as signature campaigns, calls for expressions of opinion, meetings, etc.).
Spam, including above all all messages that can be assumed that the recipient does not want them

8.5 Smarterpix is entitled not to allow, modify, block or remove content, entries and other information that violate the terms of use. The members have no claim against Smarterpix to discontinue or use the content, entries or other information, to lift a block or to reinstate content, entries or other information that have already been removed.

8.6 In the event of violations, Smarterpix has the right to block the entire account or only parts of it with immediate effect. The blocked member is prohibited from re-registering under a different account or from using the platform in any other way. Smarterpix reserves the right to initiate criminal proceedings and / or to assert claims (in particular claims for damages) against the member.

8.7 In order to ensure that all customers can use the content without problems, delays or impairments and to protect customers from fraud, the member acknowledges and agrees that Smarterpix has the sole right: (i) the monitor use of Smarterpix by the member and also monitor the content downloaded by the member; (ii) to flag, block or terminate the member account if it is suspected that the member is downloading the content as a stockpile; (iii) search for misuse of login data (ID and password) that violates this contract; (iv) to reduce the download speed if a certain specified limit is exceeded and (v) to terminate the contract without notice if Smarterpix has the impression that there has been a breach of contract or misuse of the login data. In the event that the contract is terminated due to a breach of contract or misuse of the registration data, the member loses the right to use Smarterpix and the content. In this case, the member must immediately delete all content that he has received on Smarterpix and has not yet used.

Duration of the usage authorization

9.1 The duration of the contract between Smarterpix and the member is unlimited. It can be terminated at any time without notice by the member or Smarterpix. An exception to this are members with uploaded content. Content can be deleted with a period of 4 weeks. If a member with uploaded content ends his membership, the period of notice, taking the deletion into account, is a maximum of 4 weeks, unless Smarterpix confirms an earlier deletion. Then the membership ends with the confirmation.

Exceptions to the deletion and licensing of the content:
(a) The previews of the content (thumbs) are not deleted, but remain in a separate area on the Smarterpix servers.
(b) Content that has been licensed to customers is not deleted, but made inactive. The associated data are retained for administrative and tax purposes as well as for warranty purposes, but can no longer be viewed in the public area.

9.2. The termination can either be made via the Smarterpix member area or in writing (fax, email, post). In the event of a written cancellation, the member is informed of the cancellation by email to the registered email address and must actively confirm the cancellation by clicking on the cancellation link.

9.3 Special right of termination: Smarterpix is also entitled at any time to discontinue the platform www.Smarterpix.com, the services offered on it or parts thereof without prior notice. To the same extent, the member’s authorization to use ends automatically.

9.4 Usage rights that have already been transferred to customers will continue to exist.

Contact

10.1 Members can contact Smarterpix via the email contact form. However, the Internet is not a completely secure medium and there is always the possibility that messages will be lost, intercepted or altered. Smarterpix assumes no liability for damage in connection with communications sent to or from the website.

10.2 With regard to all information communicated through the website or by e-mail, the member agrees to the following conditions:

Smarterpix has no obligations regarding such information;
the information is considered non-confidential;

Only written communications (fax or post) to Smarterpix are legally binding.

Database right

The content and forum posts that can be accessed on Smarterpix represent a database that is protected by copyright. It is forbidden to take over or edit the structure of this database in whole or in part without the consent of Smarterpix.

Limited Representations and Warranties

12.1 The customer is responsible for obtaining the permits required for the respective use of the content, if not available. This applies in particular to images of people, works of art or architecture, places not accessible to the public, as well as to other images that contain names, companies, brands, registered designs or works protected by copyright (§2 UrhG) or affect other property rights of third parties.

12.2 If the image description does not indicate the existence of a model release in the data on the content on the website, the rights of use are granted without a model release. The customer is responsible for obtaining all necessary approvals. However, Smarterpix is willing to cooperate with the customer in obtaining such approvals (for a flat fee).

12.3 If the existence of a property release is not indicated in the data on the content on the website, the rights of use are granted without property release. The customer is responsible for obtaining all necessary approvals (for example, in addition to a property release, a clearance with regard to any existing property rights). However, Smarterpix is willing to cooperate with the customer in obtaining such approvals (for a flat fee).

12.4 Smarterpix does not have approvals / permits from manufacturers of commercial products (e.g. vehicles, aircraft, packaging, designer clothing, etc.). However, releases are often available on a case-by-case basis. It is the sole responsibility of the customer to determine whether permission from the owner of the property rights is required in connection with the corresponding use of the content. The customer is responsible for obtaining all necessary approvals. However, Smarterpix is willing to cooperate with the customer in obtaining such approvals (for a flat fee).

12.5 Notwithstanding this, Smarterpix is neither obliged to provide this cooperation nor does Smarterpix owe any success.

Liability

13.1 Liability for content, checking the content

13.1.1 It is expressly pointed out that Smarterpix does not check the uploaded content. Keywords are assigned or supplemented by authors or automatically by algorithms and are therefore not binding. Smarterpix reserves the right to reject individual content without giving reasons or to delete content that has already been accepted from the database at any time. The author bears sole responsibility for the legality of the content and for the authorization to pass on rights of use to the content. Any liability on the part of Smarterpix in this context is expressly excluded. By downloading content, the member undertakes to exempt Smarterpix from liability and not to take legal or judicial action against Smarterpix.

13.1.2 If claims are made against Smarterpix as a result of a culpable breach of the author’s obligations, in particular with regard to violations of copyright, personal rights, property rights or industrial property rights, the author indemnifies Smarterpix from any liability and any costs, including any procedural costs.

13.1.3 The same applies if a customer is sued by a third party as a result of a culpable breach of the author’s obligations.

13.1.4 Smarterpix assumes no liability in particular, which should result from a use of the posted content by the customer in violation of the contract.

13.1.5 If an author or a third party sees his own rights or a third party being infringed, Smarterpix must be informed immediately in writing. In the justified case, Smarterpix will immediately delete the relevant content from the database.

13.2 Subject to clauses 13.9 and 13.10, Smarterpix assumes no liability for damage resulting from the use of the website or the direct or indirect use of the content.

13.3 There is no entitlement to the operation, continuous availability and error-free function of the website www.smarterpix.com.

13.4 The information content of this website is updated by Smarterpix at regular intervals. Nevertheless, Smarterpix cannot assume any guarantee, responsibility or liability for the correctness, topicality or completeness of the information on the website.

13.5 Smarterpix can change, add to or delete the information, services and / or sources mentioned on the website at any time and reserves the right to make such changes without prior notice to previous, current or future visitors.

13.6 The website contains links to other websites which, however, are for informational purposes only. If such links exist, this does not mean that their content is monitored or approved by Smarterpix. Smarterpix accepts no responsibility whatsoever for such websites and is not responsible or liable, directly or indirectly, for any damage or loss arising from or in connection with the use of any information, content, goods or services or in reliance on them, which are available on or via the websites of third parties or via links to sources indicated.

13.7 In the event of technical difficulties with the Internet, the information on the website may be inaccurately or incompletely transmitted or reproduced by the Internet software or due to transmission problems. Liability for this, as well as for transmitted computer viruses and other harmful programs, is excluded subject to clauses 13.9 and 13.10.

13.8 Smarterpix endeavors to protect all members with the care customary in the industry. Subject to clauses 13.9 and 13.10, Smarterpix can in no case be prosecuted for damage caused by data espionage, hacker attacks, faulty hardware or software or force majeure.

13.9 The liability of Smarterpix, as well as the liability of its vicarious agents for breaches of contractual obligations as well as offenses, is limited to intent and gross negligence. This does not apply to injury to life, body and health, claims due to the violation of cardinal obligations and compensation for damage caused by delay (Section 286 of the German Civil Code). In this respect, Smarterpix is liable for every degree of its fault or its vicarious agents.

13.10 Liability for the breach of obligations, the fulfillment of which make the proper execution of the contract possible in the first place and compliance with which the customer can regularly rely on (so-called cardinal obligations) is limited to the foreseeable, typically occurring damage.

Final provisions

14.1 For customers who are merchants, legal entities under public law or special funds under public law, the exclusive place of jurisdiction is Munich.

14.2 This license agreement is subject exclusively to the substantive law of the Federal Republic of Germany, excluding the conflict of laws and UN sales law.

14.3 Should individual clauses be ineffective, this shall not affect the effectiveness of the remaining clauses.