Purchase agreement and license conditions of topimages.com

Valid as from 1.10.2006
1. Introduction topimages.com is an identifying brand protected by trademark and a product offered by ImagePoint AG in Zurich (hereinafter referred to as "topimages.com"), which, acting as an agent as defined by Art. 425 et seq. of the Swiss Code of Obligations, is the contracting partner of the purchaser in question. By purchasing an image, the purchaser (hereinafter referred to as "the purchaser") acquires the picture data file and authorisation to use the image as described below (license made available for sale by the photographer or content provider (hereinafter referred to as "the photographer")).
2. License conditions

By purchasing the image, the purchaser acquires only the rights of use defined below. He does not acquire full copyright, but only the right of use to the extent as described. Any other rights which may be involved such as the rights of the persons photographed, rights pertaining to trademarks, design objects, works of art, buildings, etc., must be clarified and acquired by the purchaser for the purpose for which he proposes to use the image on his own responsibility. The photographer alone and not topimages.com is liable for information provided by the photographer about model Release and property Release and published on the website of topimages.com.
Substantive and geographical scope of the rights of use:

• With reference to a particular project, the use of the image purchased under the order is permitted for all media with no limitation as to geographical scope and time (e.g. printed matter, periodicals, web, presentations). Further licenses (rights of illustration) must be secured for use extending beyond the particular project or for other users.
• The onward sale or Release of an image to third parties or the transfer of rights is not permitted.
• The purchaser acquires non-exclusive rights of use.
• The images may be used without geographical limitation.

Lapse of the rights of use: The purchased image must be processed and used within six months of the date of purchase, otherwise the rights of use granted shall lapse. The time of use is regarded as the date on which the definitive layout is finalised. Use of the unchanged layout is in principle permitted with no limitation as to time. If no layout has been adopted within six months or if the layout is altered on expiry of that period, the image or the right of use must be purchased once again. A number of examples, which are not to be regarded as exhaustive, are set out below:

• Advertisement: time at which the graphic design is finalised. After six months, only the identical master may continue to be used. If a new master is produced or the old one is altered, the image must be purchased again.
• Brochure: time at which the graphic design is finalised. After six months an identical new edition may be printed, but if the content of the brochure is changed, the image must be purchased again.
• Press: time of publication. After six months, the image may no longer be published; a further purchase must be made.
• Website: time at which the website is completed. After six months, the image may only be used if the presentation of the website remains unchanged. As soon as the website is redesigned with substantial changes, the image must be purchased again.
• Presentation: time at which the presentation is completed. If the presentation is substantially changed after six months, the image must be purchased again

topimages.com is entitled to define the time limitation more precisely for the purchaser in a particular case or to waive such limitation. All such agreements must be made in writing.

Limitations of use

Images purchased on topimages.com may not be used

• for the purpose of unauthorised and punishable actions;
• in a pornographic context;
• in a manner which is demeaning and humiliating for the person(s) illustrated and
• in a manner which is demeaning and harmful to the reputation of the photographer;
• if it may be assumed that the person illustrated may not agree to the planned publication, in which case specific authorisation must be obtained from the person in question.
• In addition, use is not permitted if it may be assumed that third parties may lay claim to rights in the image (e.g. moral and personal rights of persons who are illustrated, rights in trademarks, design objects, buildings, works of art, etc.). In this case, the consent of the owner of the specific rights of use must be obtained.

The images may be modified by the purchaser for his particular use. Changes which distort the original image in such a way as to cause personal prejudice such as reputational damage to the creator are not allowed, nor are changes limited or prohibited by further rights (moral and personal rights, trademark law, etc.). In such cases, the specific authorisation of the owner of the rights must be obtained.
Copyright note

The naming of the creator when the images are used is desirable but not compulsory. If the name of the photographer is not known, "© topimages.com" may be used, in which case, however, the impression may never be created, either deliberately or by negligence, that the use of the image or its content is free from the rights of third parties.

3. Other conditions of contract Delivery conditions: download and nature of the images The images are delivered via download which can begin when payment has been made. The purchaser receives the image with the resolution and data file size indicated in the purchase process. The purchaser undertakes to provide full and correct information required for ordering and payment. Delivery is made at the risk of the purchaser. topimages.com cannot accept any liability for technical problems which may occur on the purchaser’s side.
In the event of late delivery, due for example to technical problems, an appropriate period of grace must be granted to topimages.com in writing. Complaints will only be entertained within seven days of the transaction date, failing which the delivery shall be deemed to have been approved.
Prices

The latest prices published on the website of topimages.com shall apply in all cases. Save where otherwise stated, the prices are quoted exclusive of value added tax and any other statutory charges or levies.
Preview images

Preview images which are delivered by topimages.com free of charge do not include any rights of use. The only exception is use in draft designs with a view to the subsequent purchase of an image.
Exclusion of liability

topimages.com makes all usual and reasonable efforts to safeguard security, in particular the confidentiality of customer and payment data. Any more far-reaching guarantee on the part of topimages.com is declined. Under no circumstances shall topimages.com be liable for damage caused by the direct or indirect use of the image or the use of this website. Over and above the license described in section 2, topimages.com accepts no legal or substantive warranty in respect of the moral and personal rights of persons who are illustrated or intellectual property rights in the identifying marks, transferable assets or real estate illustrated.
Obligation of the purchaser to provide evidence and documentation

Upon first request by topimages.com, the purchaser must document the lawful use of purchased images and present the documents (e.g. voucher copies, screenshots) for inspection. For each instance of unauthorised use or Release of the image, the purchaser must pay a contractual penalty amounting to US$ 5,000 to topimages.com. topimages.com reserves the right to assert further claims for damages.

Security and data protection Customer data may be used for own marketing purposes and also for evaluations for the benefit of the image suppliers. Customer data shall only be used for other purposes after obtaining the consent of the purchaser.

Applicable law, place of jurisdiction, place of performance

All legal relationships between photographers, customers and visitors to the site of topimages.com shall be governed by and construed exclusively in accordance with Swiss law. The United Nations Treaty on the International Purchase of Goods (Vienna sales convention) shall not apply. The place of performance, place for the collection of claims against users of images of topimages.com based outside Switzerland and the place of jurisdiction for proceedings of all kinds is Zurich. However, topimages.com also reserves the right to initiate legal proceedings against the contracting partner of topimages.com with a competent court at the place of domicile or the registered office of the contracting partner or with any other competent court.