Status of Terms and Conditions from 01.08.2023
These Terms and Conditions (hereinafter “TC”) govern the use of the services offered by VAAAM AG (hereinafter “VAAAM”) via the website www.vaaam.io (hereinafter “Website”) and the legal and contractual relationships between VAAAM and the Users.
1. “User” within the meaning of these TC shall mean anyone who makes use of the VAAAM services.
2. “Picture” within the meaning of these TC are photographs and photographic works within the meaning of copyright law.
3. “VAAAM Services” means all services offered by VAAAM including retrospective, current and prospective licensing.
4. “Customer” means anyone who has engaged VAAAM to pursue unlicensed uses of their copyrighted work.
These terms and conditions apply to all business relations between the User and VAAAM. Any other terms and conditions of the user shall not apply, even if VAAAM does not specifically object to their validity in individual cases.
3.1 The User first receives an e-mail from VAAAM regarding the unauthorized use of a Customer’s image, the email contains all necessary information, data and evidence of an infringement of the image committed by the User in the form of a PDF (hereinafter the “Case Report”), as well as invoice for a retrospective license offered by VAAAM, and an authorization letter signed by the Customer as proof of their engagement in VAAAM Services as well as their rights to pursue infringements of the copyrighted work outlined in the Case Report.
3.2 The User has the option to provide proof of a valid license to show that no such infringement has occurred. If the User cannot present a valid license for the use of the copyrighted works then the User is obliged to acquire a retrospective license and remove the copyrighted works from their website. Additionally, if the User would like to continue to use the copyrighted works, they have the option to request a prospective license. Prospective licensing is negotiated on a case-by-case basis, VAAAM has no obligation to offer a prospective license.
3.3 Payment of the license fee is due as per invoice terms. The granting of the offered user license is subject to the condition precedent of full payment of the license fee and any further costs incurred to the account specified by VAAAM in the invoice. If the User is an EU-registered company, this payment is subject to Reverse Charge. VAT should be rated and paid in the country of the User.
3.5 If the payment is not received despite a minimum of 2 written reminders after the original invoice date, VAAAM will enforce the rights to which the Customer is entitled (to information, injunctive relief, damages, and compensation for use, etc.) with the involvement of collection and or legal service providers (debt collectors, lawyers). The User is aware that in the event collection efforts are passed on to a debt collection agency, processing fees in accordance with www.fairplay.ch will be charged. In the event other legal services need to be utilized additional legal fees may also apply.
3.6 Costs for late payment: After at least 2 written reminders, the case will be forwarded to a collection agency, which will charge a processing fee according to www.fairpay.ch.
4.1 The User is prohibited from taking any action that serves the purpose of preventing, complicating and/or excessively burdening the operation of the website or the technical equipment behind it. This includes, but is not limited to, the following: (a) the use of software, scripts or databases in connection with the use of the Website (b) the overwriting, blocking, modifying, copying of data and/or other contents of the website, as far as this is not relevant for the proper use of the website, so-called installation of malware, spyware, in particular for the purpose of overcoming access barriers, manipulation of the website so-called “hacking”.
4.2 In the event of a culpable breach of duty, the user is obliged to compensate for the damage caused by the breach of duty. In addition to the loss of restoration, this also includes the loss due to loss of profit as a result of loss of use or functionality of the website. This shall be estimated by VAAAM on the basis of the previous six months; it is the burden of the User to provide evidence of any inaccuracy.
4.3 The User has no claim to the maintenance of individual system functionalities of VAAAM’s Services on the Website. VAAAM is entitled to restrict or terminate its services in whole or in part, temporarily or permanently, if this is necessary with regard to capacity limits, maintenance work, the security or integrity of the servers, for the implementation of technical measures or for other reasons.
5.1 As this concerns retrospective licensing, the images used by the User shall be deemed to have already been delivered. The User has no claim to delivery in higher or other quality. Any liability of VAAAM for the delivery is excluded.
5.2 If, for legal reasons, licensing is not possible after conclusion of the contract, VAAAM shall notify the User of this in a timely manner and shall waive an agreed license fee if necessary.
The license will not be granted until the license fee has been paid in full (see above).
7.1. The license offer is based on the period of use as noted on the Invoice.
7.2 It is noted that license fees may vary depending on the type of VAAAM customer (e.g. picture agencies, authors). The post–licensing offer includes the granting of a license for the entire retrospective use. Another licensing offer includes the granting of a license for the prospective period of use shown in the offer.
8.1 If the User acquires a retrospective license, VAAAM shall grant the User a non-exclusive license to the copyrighted work specified in the Case Report for the purpose and duration specified in the Case Report and Invoice on the basis of an agreement made with the party entitled to the Image (Image Agency, Author) to sub-license the Image. The license agreement ends with the expiration of time without the need for termination.
8.2 The license is granted from the date of the first publication of the Images on the Website determined by VAAAM until the end of the agreed license period. If the User of the Image acquires a license for the prospective use of the Image, they shall not be obliged to name the originator unless expressly agreed otherwise in individual cases.
8.3 This right of use permits the User to publish the licensed Image(s) only at the determined storage location (e.g. URL) and only in the determined use according to type and scope. If the User wishes to use the Image for other purposes (e.g., in particular for representation in print, use in apps, social media channels, etc.), a separate agreement between VAAAM and the User is required.
8.4 The User shall not be entitled to grant sublicenses. The images may only be edited if this is necessary for the purpose of use (e.g. changing the file size, conversion into another format) and this does not change or impair the appearance of the image. The user must obtain permission to do so or, if VAAAM has already done so prior to making contact, must have this retrospectively notified and approved by VAAAM.
8.5 The User is not allowed to use the Images in connection with or for the presentation of the following content:· Racism and discrimination· Harass persons or companies· Glorification of violence and extremism of any kind· Personally offensive statements, libel, defamation, and slander as well as breaches of fair-trading law· Pornography· Calling for and instigating criminal offences and violations of the law, threats against life, limb, or property· Advertising for political parties· Offensive, sexist, obscene, vulgar, or repulsive materials and expressions· Religious missionary work
8.6 The right of use according to sections 9.1 and 9.2 is entitled to the User of the Image after receipt of full payment of the agreed license fee.
8.7 The User is not entitled to continue using the image after expiry of the license period. Accordingly, the User shall be obliged to delete all copies of the Images at the time of termination of the License and to cease making the Images publicly available. The User is therefore obliged, if necessary, by seeking the advice of his IT service provider, to ensure the complete removal of the image from the server used by him / through the User’s service provider; the mere removal of the image from the website of the Image User is not sufficient.
8.8 If the User continues to use the Image after the end of the License Period, he shall be obliged, for each case of culpable breach of duty, to pay a reasonable contractual penalty, the determination of which shall be at the discretion of VAAAM but shall only be binding if it is fair. If it does not correspond to fairness, the determination shall be made by judgment; the same shall apply if the determination is delayed VAAAM shall be free to offer the user a further license agreement to legitimize the use instead of asserting the contractual penalty but shall not be obligated to do so. Other claims of the copyright holder and VAAAM remain unaffected.
9.1 VAAAM shall prosecute violations of image rights on behalf of the Customer. VAAAM’s activities are primarily directed against the unlawful commercial use of images by companies with the aim of legalizing this use. Consumers are not the focus of VAAAM’s activities. Companies shall not be entitled to a right of revocation.
9.2 If the User of the Image is exceptionally a consumer, he shall be entitled to a statutory right of revocation). A consumer is any natural person who concludes a legal transaction for a purpose which can neither be attributed to his commercial nor his self-employed professional activity. In this case, VAAAM shall remain entitled at its own discretion to assert other claims (compensation for damages, loss of profit, etc.).
10.1 These provisions shall be governed and construed under the Laws of Switzerland, without giving effect to the conflict of laws provision thereof.
10.2 For disputes arising from or in connection with contracts between VAAAM and users shall be settled in accordance with the Conciliation and Arbitration Rules (Schlichtungs- und Schiedsgerichtsordnung) of the Zurich Chamber of Commerce. If settlement fails, the dispute shall be finally resolved by an Arbitral Tribunal of the Zurich Chamber of Commerce seated in Zurich in accordance with the provisions of the said Conciliation and Arbitration Rules.
11.1 VAAAM reserves the right to amend these TC to the extent necessary in the event of a change in the legal situation, supreme jurisdiction or market conditions.
11.2 If individual provisions of these TC are legally invalid, the remaining TC shall remain valid and binding. The ineffective provisions shall be replaced, if any, by the statutory provisions. The parties undertake, insofar as no statutory provision exists, to replace the ineffective part of the contract with an effective provision which comes as close as possible to the economic objective pursued with it.
11.3 Amendments and supplements to the contract must be made in text form