General conditions of contract and license agreement
(A) – INTRODUCTION
Our customers are invited to read the following General Conditions of Contract carefully. The document may be downloaded and saved in PDF format. These General Conditions are applicable to all contractual agreements concerning use of Foto Locchi S.r.l. photographic images stipulated between the customer and Foto Locchi S.r.l., including agreements stipulated via the www.fotolocchi.it website.
This document also contains information provided as required by and to all effects of Legislative Decree no. 206 of 6 September 2005 (Consumer Code) and, in particular, Section I of Title III of Part III.
(a) Foto Locchi S.r.l. – VAT no. 00395940489, R.E.A. (Index of Economic and Administrative Information) no. FI-63487 with registered headquarters in Florence, Via del Corso 21R, phone +39 055 213743, fax +39 055 211473, email firstname.lastname@example.org
– is the creator and sole owner, author, and maker (ex Art. 12-bis of Law no. 633/1941 [Law for the Protection of Copyright and Neighboring Rights) of the Archivio Storico Foto Locchi Data Bank (“Data Bank”) compiled from its photo archives (which enjoys ministerial protection).
(b) The Data Bank is protected under the above-cited copyright statute (Art. 1 § II sub 9), which, in detail, grants to Foto Locchi S.r.l., in its qualities as specified above, the exclusive rights set forth in Arts. 64-quinquies and 102-bis and -ter of the above-cited law, independently of the protection afforded the contents of the Data Bank under the articles on author’s rights as such.
(c) All the images displayed on the www.fotolocchi.it website, which customers can locate using appropriate IT search tools / which constitute the object of the contractual agreement (hereinafter, “Contract”) are rights-managed digitized photographic images (“photographic images” in accordance with and to all effects of the above-mentioned law), solely owned by Foto Locchi S.r.l. – which holds the original negatives, in roll film format, of photographs taken since the 1930s by professional photographers commissioned by Foto Locchi S.r.l. – and, likewise, of exclusive pertinence of the Data Bank.
(d) “Rights-managed” images are photographic images, the economic use rights in which are granted by license for the single use requested by the customer and expressly authorized by the rightholder/owner.
(e) In its qualities as specified above, Foto Locchi S.r.l. may grant the right to economic utilization – and therefore extraction and re-use of the rights-managed images contained in the Data Bank – by authorization and/or under use license.
(f) Said authorization/use license is granted by Foto Locchi S.r.l. through stipulation with the consumer or professional customer of a Contract governed by the Italian Civil Code, the provisions for protection of the authors’ rights, Legislative Decree no. 206/2005, and these General Conditions of Contract.
(g) Hereinafter, the acronym “BD-FL” shall stand for Foto Locchi S.r.l. and/or the Data Bank.
(B )-COMPING USE
(1-Definition of Comping Use) “Comping use” is understood as the personal, non-exclusive, non-transferrable right which BD-FL may grant to the customer to download and use an image/images, in medium resolution and watermarked, for the sole purpose of previewing, creating personal/in-house presentations and preliminary layouts such as to allow the customer to evaluate whether or not to stipulate a Contract the object of which is BD-FL photographic material. BD-FL grants the customer access for comping use via download from the My Account area of the www.fotolocchi.it website or via delivery of the digital material by email.
(2-Definition of Watermark) The “Watermark” is the visible overlay on the digital photograph which identifies the rightholder as BD-FL.
(3-Time Limit on Comping Use) Comping use rights are granted for a limited period of 30 (thirty) days from the date an image is downloaded from the BD-FL website or sent via email, after which term the image must be removed by the customer from any and all supports on which it is stored, as must also the copy mentioned in point 4 below.
(4-Copy) The customer may create a single copy of each image authorized for comping use for the sole purposes of previewing and evaluation. It is understood that upon expiry of the aforementioned term, no use whatsoever of the aforementioned copy is granted; said copy must be permanently deleted from the customer’s computer memory and/or from any other support on which it may be stored.
(5-Restrictions and Exclusions) Customers licensing material for comping use only waive any right to:
- make use of the image/s for any advertising, promotional, editorial, or for any other commercial use;
- create derived products which incorporate the image/s in whole or in part and in any manner;
- sub-license, sell, publish, distribute, or otherwise make the image/s and/or parts thereof available;
- publish the image/s on the Internet, on websites of any type (including the social networking sites) or by other electronic information-sharing systems;
- remove the watermark or other digital ID embedded in the image/s;
- make use of the image/s for any purpose different from comping use as defined above without having first been granted authorization by BD-FL or obtained a license to use the images in accordance with the conditions set forth in the following section.
C - USE RIGHTS AND PURCHASE OF ARTISTIC PRINTS OR OTHER MATERIAL INCORPORATING BD-FL IMAGES
(6-Scope and General Content of Acquired Rights) Customers may purchase artistic prints and/or other material incorporating images owned by BD-FL, just as they may be granted use rights in the images, by BD-FL, for the single use requested by the customer and expressly authorized by BD-FL. The authorization/license so granted for use of the images or supply of artistic prints or other material incorporating images owned by BD-FL shall not be construed as constituting transfer of ownership or of any right, whether moral right, author’s right, or right to acknowledgment as author, in the image/s in question. The general procedure for stipulating a Contract is described in points 7, 8, 10, and 11 below. A Contract may be stipulated electronically in the manners set forth on the www.fotolocchi.it website or via exchange of individual communications (e.g., exchange of email messages).
(7-Request for Estimate) The customer must send a non binding “request for estimate” specifying the artistic prints and/or other material incorporating images owned by BD-FL which he/she intends to purchase and/or the use/s to which he/she intends to put the image/s and all pertinent details of use (including context/territories, dates/duration, modes of use, modes of publication, etc.).
(8-Estimate) Basing its reply on the customer’s request for estimate, BD-FL will specify the applicable fee for the service requested (“Estimate”), which will be calculated on the basis of the information provided by the customer, which must therefore be as complete and accurate as possible.
BD-FL reserves the right to refuse any request for estimate at its sole discretion.
(9-Fee) The nature of the service offered by BD-FL is such that it is not reasonably possible to calculate in advance – and prior to delivery of the Estimate – either the fee or the shipping costs to be charged to the customer. The overall cost of a service will, in fact, vary in relation to the customer’s request and, accordingly, to the number of images, the type, the context/territories, and the dates/duration of the requested use as well as to the type of material incorporating the image/s, which will be reported exactly in the Estimate together with any applicable taxes and shipping costs, based on the information supplied by the customer in the request for estimate.
(10-Confirmation of Order) With his/her successive communication (“confirmation of order”), the customer may accept the offer price and the limitations set forth in the Estimate; by so doing, the customer also accepts all the General Conditions of Contract and the licensing terms and conditions set forth in this document (and in the Estimate), which are understood as being knowable by and known to the customer, as well as any different conditions applicable to the single Contract (as set forth in the request for estimate and reported in the Estimate). Pursuant to confirmation of order, the customer shall have the duty to pay the agreed-upon amount to BD-FL; by confirming the order, the customer expressly acknowledges the obligation to pay the amounts owed.
(11-Confirmation of Contract) Pursuant to receipt of confirmation of order, BD-FL will send another communication (“Confirmation of Contract”) to the customer, confirming stipulation of a binding contractual agreement between the parties and containing a summary of the terms and conditions of the Contract and an invitation to proceed with payment of the amounts owed. In the case of contracts stipulated electronically via the www.fotolocchi.it website, all the information and documents relative to the contract stipulated will (also) be available at customer’s My Account area.
(12-Modes of Payment and Delivery; Product Characteristics) Payment may be made in any of the manners set forth below:
- credit card
- bank transfer.
Delivery – in the case the customer purchases artistic prints or other material incorporating BD-FL images or digital content on material support/s – will be made within thirty (30) days by courier. Material products (artistic prints or other support/s incorporating BD-FL images) supplied by BD-FL do not contain materials or substances hazardous to man, object, or the environment. The specifications of the materials used and the manufacturing methods employed, as well as instructions and precautions for use (where applicable) are reported in the single product data sheets.
(13-Use License, Delivery of the Digital Content, and Specific Restrictions) Within 5 (five) days of receipt of payment of the total amount specified in the Estimate or invoice, BD-FL shall send the image/s to the customer via email, as a digital file in the format specified by the customer, or on a material support, if so requested, or to the appropriate area of the customer’s My Account space. By so doing, BD-FL – grants the user the non-exclusive (unless otherwise specified in the Estimate or invoice) right, which is not sublicensable nor transferrable, in whole or in part, to make use of the image/s that is/are the object of the Contract. The digital files have the following characteristics (also in terms of interoperability with software and hardware) and features: 300 dpi jpg. or other resolution and/or extention agreed. Digital files are also protected by technical means such as Digimarc or other digital ID. The rights in the images granted by BD-FL under license are strictly limited to the specific uses, medium/media, duration of license, circulation (“print run”), image size, territory, and any and all other restrictions on use set forth in the Estimate or the invoice. Unless otherwise specified in the Estimate, any second use of the image/s, even if identical, is prohibited. BD-FL reserves all rights not specifically granted to the customer. Any further use or use different from that stipulated and expressly set forth in the Estimate must be stipulated in advance with BD-FL, in writing, and shall be subordinate to payment of an additional fee by the customer. The above-stated limitations shall also apply in the case of supply of artistic prints or other material incorporating BD-FL photographic images.
(14-Invoice) At the time of receipt of payment, BD-FL will issue an invoice explicitly referencing the Estimate as accepted by the customer and reporting the specifics of the product/s requested and the authorization/license for use, the restrictions on use, and the authorized use, in summary form.
(15-Right to Reproduce Images) In the case a right to reproduce the image/s is granted, the customer pledges to carry out said reproduction in respect of good artistic and technical practice and to ensure that the reproduction/s is/are faithful to the original image/s supplied by BD-FL in terms of color (hue and shading/tonality) as well as in terms of definition.
(16-License for Third-party Use) Should the customer request authorization/license for use on behalf of a third party, for example a licensee, the customer hereby states and guarantees the following: the customer is authorized to act as agent of the third party and has been granted powers sufficient to obligate said third party to abide by the agreed terms and that, should the third party later contest said power or authority, the customer shall be personally bound by and shall assume full personal responsibility for any breach of or failure to observe these General Conditions, or any special conditions set forth in the Estimate, committed by said third party.
(17-Discontinuance of the Use Right) At the end of the period of time for which use is granted, or should the contractual agreement be terminated for any reason, including withdrawal from the Contract, the customer shall immediately cease use of the image/s and remove same from any and all supports on which it/they reside.
(18-Legal Guarantee of Conformity) The customer has the right to the legal guarantee of conformity provided by the Italian Consumer Code (Arts. 128 ff.), which offers protection in case of purchase of products which are defective, malfunctioning, not for the particular purpose required by the customer or stated by BD-FL, or for which the product is generally intended. The customer may avail him/herself of the rights granted by the legal guarantee of conformity by communicating directly with BD-FL (even though BD-FL cannot properly be considered a manufacturer). In the presence of a defect of conformity, the customer has the right to choose between repair or replacement of the defective product by BD-FL, without charge, except in the case that the remedy requested be impossible to provide or excessively costly with respect to the other. Should replacement or repair not be possible, the customer has the right to a reduction in the price or to reimbursement of an amount commensurate with the value of the goods, upon return of the defective product to BD-FL. The legal guarantee has a duration of two years from the date of delivery of the product and the customer must report the lack of conformity within two months of discovery of the defect. Under said legal guarantee, BD-FL will take delivery of the defective product in order to verify whether the malfunction depends on a lack of conformity. In particular: (i) for defects which arise within six months of delivery of the product, the aforesaid verification shall always be at the expense of BD-FL, since it is presumed that defects manifesting within that period already existed at the time of delivery; (ii) after the aforesaid period, and solely in the case that the malfunction does not depend on a lack of conformity, the customer may be requested to reimburse the (reasonable and previously communicated) costs sustained by BD-FL for conducting the verification. In the case lack of conformity is established, BD-FL will repair or replace the goods within a reasonable period from the time of the request with no charge to the customer.
(19-Manners, Consequences, and Duties of Reimbursement; Returns and Limitations) The customer may withdraw from the Contract stipulated with BD-FL within 14 days from the date of stipulation, with no penalty and with no need to give any reason for termination, by explicit statement of his/her intention by post, fax or email. To this end, the customer may (although same is not compulsory) make use of the withdrawal form accessible by clicking here (PDF)
. For the purposes of communicating withdrawal, BD-FL is legally headquartered in Florence, Via del Corso 21R and its contact addresses/numbers are +39 055 213743 (phone), +39 055 211473 (fax), email@example.com (email). The term of 14 days within which the above-mentioned statement of intent must be sent shall begin on the date of stipulation of the contract (that is, the date of the “Confirmation of Contract” communication) in the case of digital content not supplied on physical support; said term shall begin on the date on which the customer receives the physical product (or the last of the products ordered, in the case of multiple products delivered separately) in the cases of artistic prints or other material incorporating BD-FL images or of digital content on physical support. Should the customer withdraw from the Contract, all payments made by the customer to BD-FL will be refunded, including any delivery costs (to the exception of any additional costs deriving from the customer’s choice of a delivery method different from the less costly standard delivery method offered), without undue delay and in any case no later than 14 days from the date on which BD-FL is informed of the customer’s decision to withdraw from the Contract. Said refund/s will be made by the same method of payment used by the customer for the initial transaction unless the customer should expressly indicate otherwise; in any case, no costs will devolve upon the customer as a consequence of said refund. In the case in which the object of the Contract is artistic prints or digital content on physical support incorporating BD-FL images, should the customer withdraw from the contract, the customer is required to sustain the costs of returning the product/s, which must be returned without undue delay and in any case no later than 14 days from the date on which the customer communicated to BD-FL the intent to withdraw from the contract. In accordance with applicable law, the burden of proof in regard of exercise of the right of withdrawal shall fall entirely to the customer; BD-FL therefore recommends that notice of withdrawal be sent via registered letter with advice of receipt or equivalent means. The customer’s right of withdrawal is excluded, in the case of digital content not supplied on a physical support, should execution of the Contract have been initiated with the express agreement of the customer and his/her understanding that in this case he/she shall forfeit the right of withdrawal in accordance with Art. 59 § o) of the Consumer Code; the right is excluded should the customer purchase artistic prints or other material incorporating BD-FL photographic images which has been clearly customized (Art. 59 § c) of the Consumer Code).
(E)- RESTRICTIONS ON USE
(20-Restriction on Reproduction and Similar Restrictions) Without prejudice to any different conditions stipulated in the estimate and/or in the invoice, the customer agrees to not reproduce, communicate/publish, affix/display, distribute, show, and/or otherwise make available, in any manner and/or on any support, even through extraction, download, or sharing on web sites of any kind, including the social networking and similar sites (e.g., Facebook, Pinterest, Instagram, Tumblr) and relative applications, the photographic material that is the object of the Contract.
(21-Restriction on Alteration) Unless otherwise stipulated in the estimate and/or in the invoice, the customer agrees to not crop, alter, shrink, enlarge, reconfigure, deform, manipulate, or modify, in any manner and in whole or in part, the photographic material that is the object of the Contract.
(22-Restriction on Removal/Alteration of the Logo) The customer shall not in any case remove, alter, or modify in any manner the “Foto Locchi” logo impressed on the photographic material that is the object of the Contract.
(23-Restriction on Affixing Distinctive Marks) Unless otherwise specified in the Estimate and/or in the invoice, it is strictly forbidden to affix, in any manner or form, the distinctive marks of the customer’s company and/or to incorporate any company logos, IDs, or trademarks in the material that is the object of this Contract.
(24-Restriction on Illicit Uses) Any defamatory, injurious, pornographic, or otherwise unlawful use of the photographic material that is the object of the Contract is strictly prohibited. The customer hereby indemnifies and holds harmless BD-FL from any liability for compensation relative to any damages to third parties arising from illicit use or use not in accordance with the restriction set forth above or from even grossly inappropriate use of the photographic material, and releases BD-FL from any liability in case of any claims for compensation of any kind brought against BD-FL by third parties in regard of said types of uses.
(25-Restriction on Competitive Use) The customer pledges not to make direct, indirect, or any other use of the photographic material that is the object of the Contract, for purposes/productions competitive with the activities carried on by Foto Locchi S.r.l., or for uses which may damage Foto Locchi’s entrepreneurial prerogatives or which may cause harm or damage to the contents of the Data Bank or to its non-substantial parts.
(26-Third Parties) In the case in which the customer should employ other persons (by way of non-exhaustive example: family members, employees, outside collaborators, contractors) in connection with use of the photographic material that is the object of the Contract, the customer pledges to inform said subjects of all the duties and restrictions set forth above, to prohibit violation of same, and to inform said persons of all the rights held by BD-FL in the photographic material that is the object of the Contract.
(27-Communication of Infringements) The customer agrees to immediately inform BD-FL upon becoming aware of or suspecting that a third party may have obtained unauthorized access to the material that is the object of the Contract or may in any way be making unauthorized use of said material, in whole or in part, and/or is infringing any right held by BD-FL.
(F)- PHOTOGRAPHIC CREDITS
(28-Reproduction of Photographic Credits) Unless otherwise stipulated in the Estimate and/or in the invoice, each photograph used by the customer must carry photo credit in the form “© Archivio Foto Locchi Firenze” in addition to the “Foto Locchi” logo. Failure to include photo credit shall authorize BD-FL to invoice an additional fee in the amount of 100% of the agreed-upon original price per single image/photograph for which credit is omitted, without prejudice to BD-FL’s right to seek further compensation for damages to the extent provided by law.
(G)– RELEASES AND THIRD-PARTY CLAIMS
(29-Third-party Rights) The license granted by BD-FL does not cover rights relative to photographic portraits (likenesses), original works, trademarks, logos, trade names, drawings, industrial models and design works and any other tangible or intangible property that may be reproduced in the image/s and protected under applicable laws on author’s rights and intellectual/industrial property protection and/or under any other applicable law. The rights in the photographs which are granted by the BD-FL use license therefore do not include the above-listed additional third-party rights. The customer is therefore the sole party responsible for obtaining the relative releases from the relative rightholders/owners.
(30-Disclaimers) Without prejudice to the above, the customer exonerates BD-FL from any and all responsibility in case of claims for compensation brought in both judicial and extra-judicial fora by third parties in relation to the photographic material that is the object of the Contract and concerning presumptive infringement of author’s rights, the moral rights of persons or institutions, or trademark or any other intellectual property rights, or violation of rights to privacy, personal identity, and with regard to one’s image or likeness.
(H)- METADATA AND INFORMATION
(31-Metadata and Information) The photographic material that is the object of the Contract is inclusive of metadata and embedded information. BD-FL waives all liability for any loss or damage caused by inaccuracies in this metadata and/or information be inaccurate, even if said inaccuracies are due to simple typing or processing errors, and/or any liability arising from and/or connected with the customer’s reliance on said data. Independent and autonomous assessment of the accuracy, truthfulness, completeness, and exactness of said data shall therefore be the sole responsibility of the customer.
(I)- CONTACTS, COMPLAINTS, AND CUSTOMER ASSISTANCE
(32-Contacts, Complaints, and Customer Assistance) To lodge a complaint or request information concerning Foto Locchi S.r.l., the Data Bank, the photographic images, or these General Conditions of Contract, BD-FL may be contacted by phone at +39 055 213743 or by email to firstname.lastname@example.org
. For sales assistance, customers are invited to contact Foto Locchi S.r.l. by phone at the number given above or by email to email@example.com
. All complaints will be processed by Foto Locchi S.r.l. no later than 7 days from the date of receipt.
(L) - APPLICABLE LAW AND COMPETENT COURT
(33-Applicable Law) The contract between BD-FL and the customer is governed by Italian law. The parties hereby agree that Italian law shall be applicable in regard of the Contract even in the case that: the customer is not an Italian citizen; the customer is a citizen of another country as well as an Italian citizen; the customer is located in a country different from Italy at the time of stipulation of the contract; the image/s is/are downloaded to or sent to a destination in a country different from Italy.
(34-Competent Court) Any dispute relating to the validity, efficacy, termination, performance, or interpretation or in any other way related to the abovementioned Contract shall be settled by the Italian court of the competent jurisdiction even if: the customer is not an Italian citizen; the customer is a citizen of another country as well as an Italian citizen; the customer is located in a country different from Italy at the time of stipulation of the contract; the image/s is/are downloaded to or sent to a destination in a country different from Italy.
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