1. PREAMBLE; DEFINITIONS
1.1. Under the terms of this Agreement, the notion of Photograph shall be defined as “a document reproducing an image in an analog or digital medium or any other medium as techniques develop”. The borrowing and renting company shall be termed the Client. The lending company shall be termed the Agency.
1.2. Legal use by the Client shall depend on the following conditions, on the full payment of royalties as invoiced by the Agency and on the conformity of said use to the previously submitted request.
1.3. This Agreement is expressly subject to the provision of the French Intellectual Property Code.
1.4. The Photographs made available by the Agency shall be the property of the Author or of his or her successors in interest. Therefore the Client may not acquire reproduction or representation rights. The Photographs shall not be made available for sale, but shall be made available solely and exclusively for rental and for loan purposes.
2. EXECUTION OF THE AGREEMENT
2.1. Availability to the Client of analogue Photographs
2.1.1. The Photographs shall be delivered by post, in person or via a courier service. On the basis of information provided by the Client, the Agency shall draft a loan and rental form indicating the references of the Photographs lent and the period of the rental franchise, and shall deliver said form at the same time as the Photographs. Acceptance of delivery of the Photographs accompanying said form shall be considered acceptance of the terms of this Agreement and the general conditions of application. 2.1.2. During the rental franchise period, the analogue and digital Photographs shall only be made available for consultation purposes, and this shall not be interpreted as an authorisation of use. Should the Client fail to observe this stipulation, the Agency shall be entitled to refuse any further provision of service. Any dispute concerning the Photographs made available for consultation purposes shall be forwarded by registered post with acknowledgement of receipt no more than five days after the delivery of the Photographs.
2.2. Return of the documents on expiry of the franchise period in the absence of use and of the transfer of royalties.
2.2.1. In the event of delivery in person, on expiry of the franchise period as noted on the loan and rental form, the Client not wishing to make use of the documents delivered hereby undertakes to return them forthwith, taking full responsibility for the return of the Photographs to the address indicated on the form. Should the documents not be returned within the time limit indicated, a fixed daily charge shall be payable as indicated on the reverse of the form. The burden of proof with regard to the observance of said time limit shall fall to the Client.
2.2.2. In the event of delivery by electronic means, the Client hereby undertakes to inform the Agency in advance of any use of the Photographs.
2.3. Request for authorisation of use for reproduction and/or representation purposes of the Photographs with transfer of royalties
In the absence of other agreements or practices arising from current professional relationships, the Client shall forward to the Agency a request for authorisation for reproduction and/or representation concerning any such Photographs made available to it that it may have selected or chosen. Such request shall include all legal references making possible the legal identification of the cosignatory (legal status, capital, head office, companies index registration number). Such request shall also include all useful information on the scope, the type and the context of intended use. The scope and type of intended use shall be taken to include the type of medium, the format of use, the format of the medium, print runs, the date of each publication or representation, the duration, geographical location or site of distribution and any form of interpretation as necessary. The context of use shall be taken to include the name of the end user, sites of distribution as necessary, the name of each medium, the name and type of product, service or theme under consideration, accompanying captions and copy and any other useful information including, but not limited to, methods of technological reproduction, thus enabling the Agency to assess the scope of the authorisation sought.
2.4. Acceptance of the request for authorisation and transfer of reproduction and/or representation rights
2.4.1. Modes of acceptance : On receipt of the request for authorisation, the Agency shall forward an estimate and/or an invoice indicating the conditions of payment, and, according to the type of document selected, the intended use and context indicated, the amount of royalties, any corresponding appreciation, obligation or restriction, and administration costs. The authorisation is expressly subject to the regulations on reproduction and/or representation rights for the period indicated on the invoice. Any reproduction and/or representation of any nature whatsoever that does not conform to the conditions of the authorisation granted on the basis of the information provided by the Client in accordance with the provisions of Article 3 hereabove shall be deemed to be infringement of copyright and shall give rise to entitlement to compensation that shall be no less than five times the value of the basic royalties for the corresponding first single use.
2.4.2. Limitation of authorisation for reproduction and/or representation :
With regard to restrictions, the Agency shall, as and when required, inform the Client of any restriction on the use of the Photographs concerned by the transfer of royalties.
Information on such restrictions is necessarily dependent on the supply by the transferee of all the information required in accordance with Article 3 hereabove. Should such information fail to be supplied, or should such information prove to be inaccurate, the Client shall be solely responsible for the violation of such restriction. The transfer of reproduction and/or representation rights shall not be exclusive. Any such exclusivity that may be decided upon shall be determined by a specific written agreement and shall include the payment of royalties due by virtue of such exclusivity, as distinct from standard royalties.
2.5. Conditions relating to reproduction and/or representation
2.5.1. Legal conditions : With regard to signatures and obligatory references, the signing of each reproduction, representation or interpretation constitutes a legal reference, regardless of the form, scale or confidential nature of the use. The exact and complete names of the Author and the Agency as indicated on the mask, on the sleeve or on the reverse of each Photograph shall feature legibly on or beside any reproduction or representation.
2.5.2. Conventional conditions : With regard to documentary evidence, the beneficiary hereby undertakes to forward to the Agency free of charge full original documentation in duplicate concerning each instance of use of the Photographs for publication or reproduction within fifteen days of publication.
2.5.3. Sanctions : Should the Client fail to observe the legal and conventional conditions, the Agency shall be entitled to invoice up to double the amount of royalties due.
2.6. Return of Photographs subsequent to reproduction and/or representation
2.6.1. Method and timing of return of Photographs : The Client hereby undertakes to return the Photographs entrusted to it by registered post within the time limit specified on the form and to ensure that the Photographs are protected so as to ensure they suffer no damage whatsoever. All Photographs shall be returned in their original masks or sleeves, free of any annotation or modification by any technical process whatsoever.
2.6.2. Sanction in the event of failure to return the Photographs within the agreed time limit : Should the Photographs not be returned within the time limit indicated, a fixed daily charge shall be payable as indicated on the reverse of this Agreement. The burden of proof with regard to the observance of said time limit shall fall to the Client.
2.7. Loss of or damage to Photographs forwarded by means of a loan and rental form
The Client shall assume full responsibility for the documents from their delivery to their return to the Agency in accordance with the procedure specified in Article 6)a hereabove. In the event of loss or damage, a minimum fixed penalty shall be payable, the amount of which is specified on the reverse of this Agreement.
Should the Client cancel the request for authorisation for reproduction and/or representation of the Photographs after the drafting of the invoice, the Client shall be liable for a fixed penalty calculated as follows: - if the cancellation occurs within 30 days of the drafting of the invoice, 10% of the amount of the invoice exclusive of tax; - if the cancellation occurs within between 30 days and 60 days of the drafting of the invoice, 50% of the amount of the invoice exclusive of tax; - if the cancellation occurs more than 60 days after the drafting of the invoice, 100% of the amount of the invoice exclusive of tax.
2.9. Cost of illustration searches; duplication fees; digitisation fees
Special requests submitted by the Client for illustration searches, duplication and digitisation shall be invoiced separately and independently of the royalties and administration costs.
2.10. Copies, modifications and novel use of the Photographs
2.10.1. Copies : In the absence of written agreement from the Agency, the Client shall refrain from making any copies of the documents and from having copies made by any third party.
2.10.2. Modification and novel use of the Photographs : In the absence of written agreement from the Agency, no modifications shall be made to the Photographs in any form and by any technical process whatsoever. In the event of a prior written agreement, the Client hereby undertakes to justify on request any such modification as may be made. Failure to observe this clause shall be deemed an infringement of copyright and shall give rise to entitlement to compensation. Any novel use of the Photographs through any medium whatsoever, including the reuse of typons, shall be subject to the submission of a request for authorisation of use and to the payment of the attendant royalties.
2.11. Rights of represented third parties and represented property
The Agreement, correspondence and invoices shall indicate the prior restrictions and/or authorisations required and/or the separate rights of represented third parties and property. The Client shall be solely responsible for obtaining them directly. These restrictions, authorisations and rights shall be attributed according to the accuracy of the information provided by the Client regarding the intended use and context for such use. The Client and the user shall be solely accountable to the holders of the represented rights and shall be held accountable for the consequences, of any type whatsoever, of any such claims as may be made by the holders of such rights.
2.12. Courts exercising jurisdiction
The Agency and the Client hereby expressly agree that any disputes arising from this Agreement shall be submitted to the Paris courts.