All offers, acceptances, deliveries as well as the assignment of licenses are subject to the following applicable License Agreement. Dissenting general terms and conditions of a contractual partner are rejected hereby, even if they are part of acknowledgements of an order or part of unreserved deliveries or services, unless otherwise approved by us in writing.
2.1 'Illustration' refers to all kinds of illustrations, any illustration material including its data medium, hard copies, copies and/or other reproduction, corresponding information materials, in any case independent of the medium, in digital or analogue form and including text, signature and heading as well as other corresponding information.
2.2 'Artist' means the producer of the Illustration.
2.3 'Client' means any user of this website as well as any contractual partner in connection with this License Agreement and the corresponding grant of licenses who will avail oneself of a right against us and/or the Artist.
2.4 'Reproduction' means any form of copying, reproduction, distribution, processing, publication, variation and/or any other marketing of the Illustration or parts of it.
3. offers, fees, payments
3.1 Our offers are subject to confirmation.
3.2 All fees are quoted in AUD payable plus any applicable sales tax, but can be invoiced in Euros or American (USD). Freight/Insurance charges will be added to the initial price.
3.3 Unless electronic direct debiting or payment by credit card is agreed, invoices are to be paid net cash within 14 days from date of invoice, if not otherwise agreed upon.
3.4 Refunds will only be offered under certain conditions : -1 Prior notification by e-mail, phone or fax of the reason for the return should be made before return of the product – without prior notification no refund can be made. -2 ANIMA will not refund freight costs, only the cost of the product itself. -3 Products must to be returned to ANIMA in original packaging within 15 days of the date of delivery
4. copyright and license
4.1 In the event a contract is concluded, the Client is granted except as otherwise provided (especially save as provided in sec. 4.4) a non-exclusive, not transferable and not assignable license referring to the Illustration in digital form as named in the contract. The range of license is determined in the concluded specific contract. Without our prior written approval, the license may not be assigned and/or sold to third parties, neither completely nor in parts.
4.2 The Illustration may only be used in its original version. Any kind of adaptation, rearrangement, variation (e.g. redrawing, copying, taking photos, publishing in cut-outs, photocomposing etc.), reproduction and/or public rendering etc. requires our prior written approval, unless it is covered by the granted license. The Client’s right to optimize the Illustration for printing, to transform the Illustration into a different file format, to maximize or minimize it or to change colours remains unaffected of the foregoing. Furthermore, the Client is authorized to produce a limited number of backups exclusively for internal security reasons. The Client is required to destroy the backups after the expiration of the license.
4.3 While exercising the granted license, the Client is exclusively responsible for the compliance with the contractual regulations as well as the applicable legal provisions. The Client indemnifies the Artist and ANIMA from third parties' claims, regardless of the legal ground, whatsoever.
4.4 The license passes to the Client not before the invoice is paid completely. Any previous use of the Illustration is illegitimate.
4.5 After expiration of the license, the Illustration as well as all reproductions of it must be returned and be deleted from all storage media.
5.1 In case of any editorial use of the Illustration the Client is obliged to endorse a copyright notation (Illustrations copyright R.Swainston/anima.net.au).
5.2 The copyright/agency notation shall be readily identifiable and clearly assigned to anima.net.au.
6. ownership and copyright
No property rights and/or copyrights are assigned to the Client, whatsoever.
7.1 The Client is not entitled to any right in respect of ownership, copyright and license concerning these previews.
7.2 When the Client uses the Illustration in a manner contrary to the contract the Client is liable for all damages (see sec. 10).
8.1 We do not give any guarantee or warranty with respect to the marketability and/or suitability of the Illustration for a specific purpose nor for the use of names, persons, brands, types, designs and/or other descriptions in the Illustration, whatsoever.
8.2 Unless otherwise explicitly agreed, we do not guarantee or warranty the existence of model releases (release by a person shown in the Illustration or by a person entitled to the brand, type, thing, artwork, construction, patent and/or design or similar which is displayed in the Illustration). The Client shall be solely responsible for determining whether a model release is required in connection with any proposed use or reproduction of the Illustration and to obtain such a release.
8.3 We explicitly advise, that according to some jurisdictions the use of an Illustration or a reproduction for advertising reasons without the explicit approval of the concerning person may be prohibited or restricted
8.4 In any case, the Client must examine the Illustrations immediately when received for any possible defects and in this case inform us without delay in writing before the Illustration will be used or reproduced. Otherwise any warranty and liability of us will be excluded.
8.5 All warranties expire when the Illustration is used or modified in a manner contrary to the contract.
8.6 In any event, however, all warranties expire at the date when the assigned licenses expire or one year after delivery, depending on which occurs earlier.
8.7 Notwithstanding the foregoing provisions, as to the nature of the purchased license a right of rescission of the Agreement does only apply if the data of the Illustration has defects and the Illustration cannot be delivered by us subsequently. No further right of revocation or redemption exists, whatsoever.
9. limitation of liability of Anima.
9.1 We are only liable to make digital data of the Illustration available as agreed in the contract and for the assignment of the agreed licenses to the Client. Our liability is limited according to the following regulations. Otherwise, our liability is excluded.
9.2 Within the limits of our liability, we as well as our representatives, employees and servants are liable for gross negligence and intentional breach only, unless in the case of: Substantial breach of a material contractual obligation; Damage claims arising from an assumption of an exercise risk or from a breach of warranty.
9.3 We shall bear no liability for any loss of profit, failed reduction of costs, indirect damages and/or consequential damages, unless in the case of intentional breach.
9.4 Furthermore, the amount of our liability is limited to the sum of the contract which has to be paid by the Client for the grant of license.
9.5 Any possible liability concerning culpable harm to life, body or health remains unaffected of the foregoing.
9.6 If a third party asserts a claim against us in connection with this contract and/or the use of the Illustration, the Client indemnifies us from such claims, unless we ourselves are liable according to these terms.
10. liability of the client, unauthorized use, indemnification
10.1 The Client is obliged to comply with the legal provisions. Pornographic, defamatory, detractory or otherwise unlawful or immoral use is strictly prohibited, whether directly or in context. The Client shall be solely responsible for a possible invasion of personal privacy.
10.2 Any use of the Illustration in a manner contrary to the contract, License Agreement, this Terms and Conditions or the laws, constitute an infringement of copyright. In this case the Client is obliged to indemnify the Artist and ANIMA from all possible claims of third parties and to pay ANIMA a contractual penalty in the amount of the fivefold of the original sum stipulated in the contract which had to be paid by the Client for the grant of license.
10.3 The contractual penalty according to sec. 10.2 does not affect the assertion of any other claim by us and/or by the Artist and/or by a third party against the Client in case of unauthorized use.
10.4Unauthorised use of the content of the web-site or unauthorised use of our copyrighted illustrations from any sources constitutes infringement of copyright and other applicable rights and shall entitle ANIMA to exercise all rights and remedies under applicable copyright and other laws, including monetary damages against all users and beneficiaries of the use of such illustration. ANIMA in its sole discretion reserves the right to bill you ( and you hereby agree to pay) five (5) times the licence fee for any unauthorised use, in addition to any other fees, damages and penalties ANIMA may be entitled to under this Terms and Conditions, any applicable ANIMA content licence agreement and applicable law. The foregoing is not a limiting statement of ANIMA's or its content sources' rights or remedies in connection with any unauthorised use of the content, breach of the agreement or ANIMA Terms and Conditions. ANIMA's Terms and Conditions shall be governed by the laws in force in Perth, Western Australia, Paris, FRANCE (whichever is closest), and the parties submit to the non-exclusive jurisdiction of the courts of those States.
11.1 Without our explicit approval in written form, the Client is not authorized to assign claims against us to third parties.
11.2 The Client’s claims are subject to set-off only, if the Client’s counterclaim is undisputed or non-appealable. A right of retention may be enforced only as far as it is based on the same contractual relationship.
11.3 This notice will be governed by and construed in accordance with Australian law, and any disputes relating to this notice shall be subject to the exclusive jurisdiction of the courts of Western Australia.
11.4 As far as legally possible, the courts of Australia.
11.5 If any provision of these terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from the other terms and shall not affect the validity and enforceability of any remaining provisions. The ineffective provision has to be replaced by another regulation with a preferably same tenor.
11.6 We are registered in Australia under registration number (ABN) 41709298633. Our registered address is Po Box 1522 FREMANTLE 6959 WESTERN AUSTRALIA