1. Subject Matter and Content of Agreement, Use of Platform
The subject matter of the agreement concerns the permitted use of and the provision of a cloud-based video platform (hereinafter also referred to as the “VideoManager” or “PLATFORM”) provided by movingimage EVP GmbH (hereinafter also “CONTRACTOR”) to the contractual partner (hereinafter also “CLIENT”; CONTRACTOR and CLIENT hereinafter also referred to collectively as the “PARTIES”, individually as a “PARTY”) for the limited time of duration of the respective contract concluded between the PARTIES. The agreed use of the PLATTFORM comprises the online administration, online editing, online publi-cation, and online distribution (linking, integration of websites and social media portals, the webcast, streaming, downloading) of videos and, insofar as applicable, related presentation files via live streaming, on-demand and near on-demand , as well as the CLIENT’s ability to store data on servers that are operated by or on behalf of the CONTRACTOR, or by or on behalf of the CLIENT.
The possibility to use the PLATTFORM shall be made available by the CONTRACTOR by way of one of the following forms of service performance:
either, in whole or in part, in the form of a SaaS-solution, whereby hosting and processing of data in connection with the use of the PLATFORM is carried out on servers that are operated by or on behalf of the CONTRACTOR and the PLATTFORM may be accessed by the end users via the internet (in these LICENSING TERMS VideoManager also referred to as “SaaS-SOLUTION”); or / and (respectively)
in whole or in part in the form of an on-premises-solution, whereby the hosting and processing of data in connection with the use of the PLATFORM is carried out on servers that are operated by or on behalf of the CLIENT (in these LICENSING TERMS VideoManager also referred to as “ON-PREMISES-SOLUTION”).
The PARTIES shall specify by way of an individual agreement, by which of the two abovementioned forms of service performance the CONTRACTOR’s services shall be performed as well as whether and to what extent CONTRACTOR’s services shall be performed in part by way of an SaaS-SOLUTION and in part by way of an ON-PREMISES-SOLUTION. In case the PARTIES do not particularly specify by which of the two abovementioned forms of service performance the CONTRACTOR’s services shall be performed, the CONTRACTOR’s services shall be entirely performed and delivered by way of a SaaS-SOLUTION.
Service description in case of a SaaS-SOLUTION: In case and insofar as service perfor-mance by way of a SaaS-SOLUTION is agreed, the CONTRACTOR’s performance obligation is restricted to providing the possibility to use the PLATTFORM to the extent as provided for in the respective INDIVIDUAL CONTRACT via the internet, as well as the provision of the servers, hosting and computing capacity necessary for the possibility to use the PLATT-FORM as set out in the respective contract concluded by and between the PARTIES (in these LICENSING TERMS VideoManager also referred to collectively as the “PLATTFORM HARDWARE”), in each case limited to the time of duration of the respective contract concluded by and between the PARTIES in the sense of a lease contract. Aforesaid possibility to use the PLATTFORM shall be deemed successfully provided during the time of availability of regular electronic access to the servers and data paths involved in the performance of service from the point of transfer to the internet (“backbone”).
Service description in case of an ON-PREMISES-SOLUTION: In case and insofar as service performance by way of an ON-PREMISES-SOLUTION is agreed, the CONTRACTOR’s per-formance obligation is restricted to providing the agreed number of electronic copies of the PLATFORM or, respectively, those parts of the PLATFORM that have been agreed to be delivered in the form of an ON-PREMISES-SOLUTION in the necessary form on a suitable data carrier medium as set out in the respective individual agreement by and between the PARTIES, as well as the sublicensing of the right to use such copies of the PLATTFORM in the way and to the extent necessary for the contractually agreed use of the PLATFORM by the CLIENT subject to the stipulations in section 8. of these LICENSING TERMS VideoManager, in each case limited to the time of duration of the respective INDIVIDUAL CONTRACT in the sense of a lease contract. Unless and insofar as not otherwise agreed by and be-tween the PARTIES in an INDIVIDUAL CONTRACT, in case of an ON-PREMISES-SOLUTION the provision of PLATTFORM HARDWARE shall not be part of the service performance ob-ligation of the CONTRACTOR. Same applies to the accessibility of the PLATTFORM HARD-WARE to the internet or to the computing systems or the system environment of the CLIENT. In specific individual cases, provision of all or part of the PLATTFORM HARDWARE, limited to the time of duration of the respective contract in the sense of a lease agreement, as well as the execution of related installation, configurations and adaptation services can be made part of the service performance obligation of the CONTRACTOR by including of a corresponding provision in the respective contract by and between the PARTIES.
Connecting the CLIENT’s computing systems to the Internet is not part of the CONTRAC-TOR’s service performance obligation. Likewise, the proper and regular storage of data backups with regard to the data that is processed and distributed via the PLATFORM is not part of the CONTRACTOR’s service performance obligation. Accordingly, the proper and regular storage of data backups with regard to such data is part of the CLIENT’s responsibility.
For the use and administration of the PLATFORM, the CLIENT will be granted rights of use, depending on the individual agreements by and between the PARTIES, (hereinafter also the ‘VideoManager LICENSES’), which are linked to the person and e-mail address regis-tered with the PLATFORM. Only employees of the CLIENT shall utilize the VideoManager LICENSES and register with the PLATFORM (hereinafter also ‘AUTHORIZED EMPLOYEES’). Without the express written consent of the CONTRACTOR, the CLIENT may not transfer the VideoManager LICENSES to persons other than the AUTHORIZED EMPLOYEES, particularly not to companies affiliated with the CLIENT under Sections 15 et seq. AktG (German Stock Corporation Act) or its employees or other personnel. Nor shall the CLIENT grant actual access to the PLATFORM’s administration (such as by sharing access/login data) to persons other than the AUTHORIZED EMPLOYEES. Persons belonging to the AUTHORIZED EMPLOYEES may be replaced with respect to the allotted VideoManager LICENSES at any time.
The CLIENT shall set up its systems and programs in such a manner that the security, in-tegrity, and availability of the systems that the CONTRACTOR uses to perform its services are not compromised. The CONTRACTOR may block services if systems act or react in a manner different from regular operations, and if such behavior compromises the security, integrity, or availability of the CONTRACTOR’s server systems.
2. Functional Scope, Quality, Further Development, Third Parties
The respective functional scope of the PLATFORM owed and the scope of the other ser-vices that the CONTRACTOR shall perform (such as support, consulting, individual services) are derived from the agreement entered into by the PARTIES as well as from these LICENSE TERMS VideoManager.
The use and administration of the PLATFORM by the CLIENT requires access authorization with respect to the PLATFORM, which in turn affects the functions available to the user.
A PLATFORM quality beyond the previously defined functionality is not owed. The CON-TRACTOR does not guarantee a specific quality or characteristic of the PLATFORM. Technical data, specifications, and performance details in public statements, particularly in advertising, do not constitute descriptions of quality.
The CONTRACTOR improves upon its products and services continuously. Thus, the continuous further development of the PLATFORM in the sense of adaptation to state of the art standards is part of the agreement. This includes optimization, upgrades to reflect technical progress, and consideration of current and universally applicable operating re-quirements. As concerns the further development of the PLATFORM, partial functions (such as codecs) may be modified or removed, provided that this does not prevent the CLIENT from achieving its contractual purpose. The CONTRACTOR will inform the CLIENT in advance of any modifications that change the PLATFORM substantially.
The scope for individual services ordered, such as installation, adaptation and configura-tion services, media libraries or further developments according to individual needs or instructions (hereinafter ‘INDIVIDUAL SERVICES’) is subject to the service description indi-vidually agreed by the parties, which is an integral part of the agreement. The CONTRACTOR shall provide the CLIENT with INDIVIDUAL SERVICES ordered in the PLATFORM directly or via an Internet link, and inform the CLIENT when the service has been completed. The acceptance of INDIVIDUAL SERVICES is subject to the following provisions of these LICENSING TERMS VideoManager:
The CONTRACTOR shall notify the CLIENT in writing when the work is ready for ac-ceptance, possibly after a successful test to be agreed individually. The CLIENT shall commence the acceptance inspection within five business days.
If acceptance fails, the CLIENT shall provide the CONTRACTOR with a list of all defects that prevent acceptance. Upon expiry of an appropriate period, the CONTRACTOR shall provide a version of the work that is free of defects and ready for acceptance. As part of the subsequent inspection, only the documented defects will be checked to the extent that their functions allow them to be inspected individually.
Upon successful inspection, the CLIENT shall notify the CONTRACTOR of the acceptance of the work in writing within three days.
The CLIENT shall not withhold acceptance due to immaterial defects.
If acceptance fails at least two times, the CLIENT may assert its statutory rights, such as, in particular, withdrawel from the agreement.
The CONTRACTOR may perform hosting and streaming services through a subcontractor in accordance with the applicable statutory provisions regarding data protection and privacy. The CONTRACTOR shall be liable for the performance of subcontractors to the same extent as for its own actions.
3. Availability of an SaaS-SOLUTION
Where and insofar as service performance by way of provision of a SaaS-SOLUTION is agreed by and between the PARTIES, the stipulations of the following sections 3.1 through 3.4 shall apply.
The CONTRACTOR shall provide the CLIENT with the storage capacity necessary for the use of the PLATFORM either at the CONTRACTOR’s own data center or at data centers op-erated by a third party hired by the CONTRACTOR.
The CONTRACTOR shall ensure a maximum degree of availability for the PLATFORM as well as a minimum availability of the servers and data channels up to the transfer point on the Internet (backbone) of 99,5 percent per calendar year. This does not include downtimes due to maintenance, data backup, and software updates, as well as times during which the servers and/or data channels are not available due to technical or other problems that lie outside the control of the CONTRACTOR (force majeure, third-party negligence, etc.). Availability in this context, as understood by the PARTIES, refers to the CLIENT’s ability and/or that of AUTHORIZED EMPLOYEES registered for the PLATFORM to use the PLATFORM to the extent agreed upon. The functionality and availability owed shall be limited to the common and current browser types that manufacturers support through updates or upgrades. If the minimum availability is not met, the CLIENT shall be entitled to an ap-propriate reduction in the license fee.
The CONTRACTOR shall conduct regular maintenance and data backups with respect to its systems so as to ensure the security of network operations, the integrity of the network, the interoperability of services, and data protection. For this purpose, and taking into ac-count the CLIENT’s concerns, the CONTRACTOR may temporarily suspend or limit its ser-vices, where this is justified on objective grounds. The CONTRACTOR will conduct mainte-nance during low-use periods where possible. If temporary service suspensions or limita-tions should become necessary over an extended period of time, the CONTRACTOR shall inform the CLIENT in advance of the nature, extent, and duration of the disruption, where this is objectively feasible given the circumstances, and where such notification would not delay the clearance of disruptions that have already occurred.
The CONTRACTOR informs the CLIENT in express terms that there may be limitations or disruptions to the services that the CONTRACTOR shall perform that are beyond the control of the CONTRACTOR. This includes, in particular, actions taken by third parties who do not act on behalf of the CONTRACTOR, technical conditions of the Internet that the CONTRACTOR cannot control, and force majeure. Where such circumstances impact the availability or functionality of the services performed by the CONTRACTOR, the conformi-ty with the agreement of the services performed by the CONTRACTOR shall remain intact. Therefore, the following events, in particular, shall be considered part of available use:
• Disruptions in or due to services not provided by the CONTRACTOR or its vicarious agents that are technically necessary to use the PLATFORM;
• Disruptions or other events not (co-)caused by the CONTRACTOR or one of its vicarious agents (such as the CLIENT’s exceeding the agreed, permitted use of the PLATFORM); and
• Unsubstantial reduction in the fitness for contractual use.
4. Service Times, TECHNICAL SUPPORT, TECHNICAL CONTACT
Where and insofar as service performance by way of provision of a SaaS-SOLUTION is agreed between the PARTIES, the stipulations of the following sections 4.1 through 4.5 shall apply.
The basic functions of the PLATFORM are monitored seven (7) days a week, 24 hours a day. Operational maintenance of the PLATFORM generally takes place Monday to Friday, 9:00 AM to 6:00 PM, except for public holidays in the state of Berlin (this time period in these LICENSING TERMS VideoManager also referred to as the “MAINTENANCE PERIOD”). The CONTRACTOR removes any problems or defects in the PLATFORM, and restores the functionality of the PLATFORM within a reasonable period of time. The main administra-tor and additional support users can use e-mail and telephone support as per the agree-ment. The CLIENT shall take due care to check that a functional limitation does not fall under its responsibility or inquiries have not already been answered in the past and/or that training on the subject matter in question has already been provided.
Categories of problems:
Services are completely unavailable or Customer cannot use the services due to a Services failure.
A significant functional component of the Services is unavailable or Customer’s use of such component is impaired due to a Services failure.
A non-significant functional component of he Services is unavailable or Customer’s
use of such component is impaired due to a Services failure.
The following response times and remedy times shall apply, whereas the subsequently specified time periods shall commence upon receipt of CLIENT’s notification of the respective problem by the CONTRACTOR:
For the purpose of these LICENSING TERMS VideoManager, a „BUSINESS HOUR“ shall be defined as a time period of one hour within the duration of the MAINTENANCE PERIOD, i.e. within the time period of Monday to Friday, 9:00 AM to 6:00 PM local time in Berlin (Germany), with the exception of public holidays in the state of Berlin (Germany). In case a problem occurs outside the MAINTENANCE PERIOD, the abovementioned response times, and remedy periods shall be counted as of the start of the MAINTENANCE PERIOD of the next business day.
In addition to the troubleshooting services to be performed by the CONTRACTOR under the above Clause 4.1 of these LICENSE TERMS VideoManager, the CONTRACTOR shall provide the CLIENT with TECHNICAL SUPPORT with respect to support requests received from the TECHNICAL CONTACT of the CLIENT by e-mail or telephone in accordance with the contractual agreements reached by the PARTIES. TECHNICAL SUPPORT refers to the processing of all such technical inquiries regarding the use and administration of the PLATFORM as do not concern any actual disruptions or problems in the services performed by the CONTRACTOR (that is, the CLIENT’s assertion of warranty claims). Where the parties did not reach any agreement on booking TECHNICAL SUPPORT, the provision of TECHNICAL SUPPORT services shall be solely at the discretion of the CONTRACTOR and shall not be associated with any guarantee or warranty of any kind, and the CONTRACTOR reserves the right to deny, suspend, or terminate any TECHNICAL SUPPORT at its own dis-cretion. All contractual and statutory obligations to cooperate on the part of the CLIENT shall remain intact.
On the basis of a separate written agreement, the parties shall name an employee or service provider of the CLIENT as technical contact for the CLIENT (hereinafter, in these LICENSE TERMS VideoManager, also ‘TECHNICAL CONTACT’). The TECHNICAL CONTACT shall be appointed after having undergone training by the CONTRACTOR with respect to the use and administration of the PLATFORM and the relevant requirements concerning the technical circumstances and necessary hardware/software environment.
The CLIENT shall, prior to asserting a suspected problem or defect in the PLATFORM or prior to sending an inquiry to the CONTRACTOR regarding the use or administration of the PLATFORM, take due care to check that a functional limitation of the PLATFORM does not fall under its responsibility or that the technical inquiry regarding the PLATFORM has not already been answered by the CONTRACTOR in the past and/or that training on the subject matter in question has already been provided by the CONTRACTOR and whether the technical inquiry in question could be answered by referring to the user manuals provid-ed to the CLIENT by the CONTRACTOR or online user instructions for the PLATFORM. Fur-thermore, the CLIENT shall ensure, where possible, that all inquiries from users or from AUTHORIZED EMPLOYEES registered with the PLATFORM regarding the functionality, use, or administration of the PLATFORM are first forwarded to the TECHNICAL CONTACT for review and processing in accordance with the above sentence before the inquiries are sent to the CONTRACTOR.
If after transmitting to the CONTRACTOR an inquiry regarding a suspected functional problem of the PLATFORM or regarding TECHNICAL SUPPORT, it is found that
• there is, in fact, no defect or functional problem in the PLATFORM for which the CONTRACTOR is responsible, and
• the inquiry in question can be answered by referring to the user manuals provided to the CLIENT by the CONTRACTOR or online user instructions for the PLATFORM, or that the inquiry in question has already been answered by the CONTRACTOR in the past or that training on the subject matter in question has already been provided by the CONTRACTOR,
the time and work expended on such inquiry may be invoiced to the CLIENT by the CONTRACTOR at an hourly rate of EUR 150.00 plus applicable value-added tax for each complete hour commenced.
5. Content Responsibility of CLIENT, Indemnification
The CONTRACTOR is only a technical service provider with respect to the services described in section 1 of these LICENSING TERMS VideoManager. Only the CLIENT shall be responsible for the content of the contributions, content, and data, particularly videos, graphics, logos, texts, music, etc. (hereinafter also “CONTENT”), stored, managed, published, shared, linked, or otherwise rendered accessible via the PLATFORM.
The CLIENT undertakes to ensure, that only such CONTENT is managed, stored, shared, published, linked, or otherwise rendered accessible by CLIENT and AUTHORIZED EMPLOYEES via the PLATFORM that fully complies with all applicable law. In particular, the CLIENT shall not disseminate via the PLATFORM any violence-glorifying, racist, porno-graphic, or insulting CONTENT or CONTENT that is liable to corrupt minors.
The CLIENT shall further ensure that only such CONTENT is managed, stored, shared, pub-lished, linked, or otherwise rendered accessible via the PLATFORM that does not infringe third-party rights. The CLIENT shall guarantee to the CONTRACTOR that the former has all the necessary rights for the administration, storage, publication, dissemination, linking, or other use of CONTENT, particularly also the necessary rights of authors, copyright col-lectives, and publishing houses.
Furthermore, CLIENT is obliged to- as far as users watch/upload videos or use the webcast/livestream through the CLIENT’S system or if interoperations are included– obtain the users express consent (‘double-opt-in’) on the storage of personal data of the us-er (IP-addresses, Login-Data) according to Article 7 General Data Protection Regulations (“GDPR”). The request for and the obtaining for the approval of the use of user’s personal data is solely CLIENT’S responsibility.
The CONTRACTOR may block or delete, permanently or temporarily, the dissemination or publication of legally problematic CONTENT, fully or partially for some or all users, until a final judgment regarding the assessment of the CONTENT in question has been obtained, without having to observe a time limit or announcing such measure.
The CLIENT undertakes to ensure, that the technical resources made available are used by any user of the PLATFORM only in a manner that complies with the agreement. In particular, the CLIENT shall ensure, that no data is stored, shared, published, or otherwise introduced into the services made available that can harm or jeopardize the functions of the PLATFORM system.
Insofar as any CONTENT, that is not supplied by the CLIENT, is used or introduced in connection with the use of the PLATFORM, the CLIENT shall indemnify and hold the CONTRACTOR harmless from any and all indirect and direct damages, claims, costs (in-cluding costs of an appropriate legal defense), expenditure, and other disadvantages that may arise for the CONTRACTOR as a result of the fact that a third party asserts any claim against the CONTRACTOR due to the actual or alleged infringement of third-party rights or a violation of statutory provisions in connection with the use of the services, particularly the dissemination of CONTENT via the PLATFORM (such claims hereinafter also ‘THIRD-PARTY CLAIMS’). The CLIENT shall assist the CONTRACTOR in any and all judicial and extra-judicial assertion of THIRD-PARTY CLAIMS, and shall provide the CONTRACTOR, if and when so requested, with all data, documents, and other materials immediately that the CONTRACTOR deems necessary or helpful in the context of defending against THIRD-PARTY CLAIMS. Moreover, in the event of justified THIRD-PARTY CLAIMS, the CONTRACTOR shall be entitled to withdraw from the agreement or to terminate the agreement without notice for just cause.
6. Access/Login Data
The CLIENT shall undertake to ensure that access data for the administration of the PLATFORM is only shared exclusively for the purpose of using the PLATFORM to the extent provided for under the agreement and only with AUTHORIZED EMPLOYEES registered with the PLATFORM. The CLIENT further undertakes to ensure, that all AUTHORIZED EMPLOY-EES, that have been granted access to the administration of the PLATFORM, are informed beforehand about the agreed scope of use and to explain in express terms that the CLIENT is solely responsible for ensuring compliance with legal provisions. This shall apply, in particular, to third-party industrial property rights, rights of use protected under copyright, claims of copyright collectives, or the protection of personal/personality rights.
The CLIENT shall ensure, that the passwords, that the CONTRACTOR provides for access-ing the administration of the PLATFORM, are changed immediately after having been supplied by the CONTRACTOR. The CLIENT undertakes to ensure that all passwords and other access data are managed with due care, kept secret, protected against third-party access, and are not shared with persons other than the AUTHORIZED EMPLOYEES registered with the PLATFORM. The CLIENT shall make sure that, where a person of the AUTHORIZED EMPLOYEES registered with the PLATFORM is replaced, the respective password that was assigned to the former AUTHORIZED EMPLOYEE, is immediately changed. The CLIENT shall notify the CONTRACTOR immediately if it is suspected that access data may have been obtained by a person or persons other than the AUTHORIZED EMPLOYEES registered with the PLATFORM. The same shall apply if it is suspected that the access data may have been misused or security provisions may have been breached by AUTHORIZED EMPLOYEES registered with the PLATFORM or other persons.
The CLIENT shall be directly liable to the CONTRACTOR for actions of its AUTHORIZED EMPLOYEES, any other vicarious agents, representatives, or other third parties that are in possession of access data for access to the PLATFORM that has been supplied to CLIENT by CONTRACTOR.
Furthermore, the CLIENT shall be liable for any misuse of PLATFORM access data, including the inappropriate obtainment of such access data by third parties, that is the result of at least negligence on the part of the CLIENT, an AUTHORIZED EMPLOYEE, or any other vicarious agent.
7. Other Obligations of the CLIENT
The CLIENT shall perform all obligations that are necessary to execute the agreement. In particular, the CLIENT shall ensure that a) the provisions regarding rights of use are complied with by CLIENT as well as each and every AUTHORIZED EMPLOYEE;
b) ensure that it considers all third-party rights in CONTENT used by it;
c) obtain the necessary consent of the data subject affected where personal data is collected, processed, or used in the use of the PLATFORM and where there is no statutory exemption;
d) check for viruses prior to sending data and CONTENT to the CONTRACTOR and use state-of-the-art antivirus programs;
e) take any reasonable measures to help facilitate the identification of problems and their causes;
f) when transmitting to the CONTRACTOR data and CONTENT, save such data and CON-TENT regularly and create own backup copies in accordance with the significance of such data and CONTENT in order to allow for the reconstruction of such data/CONTENT should they be lost – in the event of loss, the CLIENT shall retransmit the relevant data/CONTENT to the CONTRACTOR free of charge.
Any defects or problems in the contractual services shall be reported to the CONTRACTOR immediately. If the CLIENT fails to do so in a timely manner for reasons for which it is responsible, such failure will be deemed contributory causation and/or negligence. Where the CONTRACTOR was unable to remedy the situation due to the CLIENT’s omission or delay, the CLIENT shall not be entitled to a full or partial reduction of the monthly flatrate fee and/or compensation for damages caused by the defect, nor may the CLIENT termi-nate the agreement without notice for just cause as a result of the defect. The CLIENT shall explain that it is not responsible for the failure to notify the CONTRACTOR of the defect. The provisions of the above Clauses 4.4 and 4.5 of these LICENSE TERMS VideoManager shall remain intact.
8. Rights of Use and Reservation
Within the context of the agreement, rights and/or rights of use will be assigned and/or granted to the CLIENT by the CONTRACTOR, if at all, only to such extent as is necessary to execute the agreement. Proprietary rights are not assigned. The CLIENT acknowledges that it does not acquire any rights of its own from the temporary use of trademarks or at-tributes of the CONTRACTOR. The CLIENT shall not modify or remove trademarks or attributes that the CONTRACTOR uses in connection with the execution of the agreement.
Where and insofar as service performance by way of provision of an SaaS-SOLUTION is agreed between the PARTIES, the CLIENT shall, subject to the stipulations of the respective individual agreement by and between the PARTIES, be granted a non-exclusive and non-transferable right, without the right to sublicense, to access the PLATFORM functions via the Internet which is limited to the term of the agreement and may only be exercised by the agreed number of AUTHORIZED EMPLOYEES that are registered on the PLATFORM at any given time.
Where and insofar as service performance by way of provision of an ON-PREMISES-SOLUTION is agreed between the PARTIES, the CLIENT shall, subject to the stipulations of the respective individual agreements by and between the PARTIES, be granted a non-exclusive and non-transferable right, without the right to sublicense, to use the PLATFORM functions to the extent and in the manner as set forth in the individual agreements by and between the PARTIES, which is limited to the term of the agreement. Aforesaid us-age right is limited in content to installing the PLATFORM on the agreed number of data carriers, the loading, displaying and running of the PLATFORM as well as creating copies of the PLATTFORM to the extent, in an amount and form as necessary for the use of the PLATFORM, all as set out in and in accordance with the provisions of the individual agreement by and between the PARTIES, and may only be exercised by the agreed number of AUTHORIZED EMPLOYEES that are registered on the PLATFORM at any given time. The CLIENT undertakes to take all necessary and appropriate measures to ensure that the software code of the PLATFORM is safeguarded at all times against unauthorized access or any access or use that is not in accordance with the provisions of the individual agree-ment by and between the PARTIES and that all copies of the software coded of the PLATFORM is kept in a safe environment that is secured against unauthorized access by all nec-essary and appropriate means.
The CLIENT and/or the AUTHORIZED EMPLOYEES registered with the PLATFORM will not be granted any rights in excess thereof. The CLIENT and the respective AUTHORIZED EMPLOYEES registered with the PLATFORM shall not use, allow a third party to use, or provide access for a third party to the PLATFORM in excess of the use permitted under the agreement. In particular, the CLIENT and the respective AUTHORIZED EMPLOYEES registered with the PLATFORM shall not, beyond the extent, number or amount as allowed pursuant to the provisions in sections 8.1 through 8.3 of these LICENSING TERMS Video-Manager,
duplicate, modify, disseminate, sell, rent, reverse-engineer, decompile, disassemble, translate or extract or attempt to extract, discover or access the source code of any part of the services of the CONTRACTOR or of software or parts thereof contained therein or any of its underlying ideas or algorithms, or knowingly use or access any software that was modified or generated in contravention to the stipulations contained in this section 8.4 of these LICENSING TERMS VideoManager;
access or use any part of the services of the CONTRACTOR or of software or parts thereof contained therein in a manner or for a purpose that would give rise to civil liability or that constitutes or encourages conduct that could constitute an administrative or criminal offense, under any applicable local, state, federal or foreign law, treaty, regulation or con-vention,
remove or suppress any intellectual property notices, disclaimers or warnings displayed or transmitted via the Software,
permit or entitle any AUTHORIZED EMPLOYEE to access or use any part of the services of the CONTRACTOR or of software or parts thereof contained therein in contravention to the provisions of these LICENSE TERMS VideoManager, create derivative works or competitive products based on such services or software.
Exceptions shall apply only where this is permitted under mandatory law or where the CONTRACTOR has consented thereto in writing beforehand.
CLIENT undertakes to conclude corresponding contracts and implement, maintain and monitor corresponding measures suited and sufficient to ensure compliance with the provisions of this section 8. of these LICENSING TERMS VideoManager by any AUTHORIZED EMPLOYEE or any third party, who may get into contact with CONTRACTOR’s services provided to CLIENT. Where CLIENT obtains knowledge of any breach of the provisions of this section 8. of these LICENSING TERMS VideoManager by any AUTHORIZED EMPLOYEE or any third party, it will inform CONTRACTOR without undue delay in writing about all relevant details of such breach and provide all reasonable assistance to CLIENT in further investigating the circumstances of such breach and the individuals involved.
In case the CLIENT is in breach of one or several provisions of sections 8.1 to 8.4 of these LICENSING TERMS VideoManager, all of the usage rights granted to the CLIENT under the agreement by and between the PARTIES, which incorporates these LICENSING TERMS VideoManager, shall become invalid with immediate effect and revert to the CONTRACTOR. In such case, the provisions of sections 11.8 of these LICENSING TERMS VideoManager shall apply accordingly. At the same time, the CONTRACTOR shall be entitled to terminate the agreement with immediate effect for grave cause.
With respect to all CONTENT, that is subject to intellectual or any other proprietary rights and that is uploaded or introduced into the PLATFORM by the CLIENT or a user of the PLATFORM, the CLIENT shall, in placing such CONTENT in the PLATFORM, grant the CONTRACTOR, and a third party commissioned by the CONTRACTOR, the necessary, non-exclusive, global rights to use such CONTENT without any restriction in time exclusively for the purpose of performing the agreed services and only to the extent that this is necessary to accomplish this. For the CONTRACTOR to be able to perform the services, the CONTENT, for example, must be stored, duplicated, hosted on servers, and rendered publicly accessible. The right of use granted to the CONTRACTOR, thus, comprises, in particular, the right to technically duplicate and render publicly accessible the CONTENT uploaded by the CLIENT or user of the PLATFORM to the extent that the CLIENT or user of the PLATFORM has ordered public availability for the respcetive CONTENT. The right of public availability shall end at the time that the respective CONTENT, that was previously uploaded, is removed from a specific service by the CLIENT or user of the PLATFORM.
9. Interoperability with Third-Party Applications/Services
Where the CLIENT has ordered interoperability with third-party applications and services, the CLIENT shall consent to the CONTRACTOR’s permitting such third-party providers to access the CONTENT and data uploaded by the CLIENT or user of the PLATFORM if and to the extent that this is necessary to realize interoperability in each case.
The CONTRACTOR shall not accept any responsibility for the publication, modifications or deletions of CONTENT and data uploaded by the CLIENT as a result of access by such third-party providers. In particular, the CLIENT shall acknowledge that such services may limit user access or prevent users from installing or activating such third-party applications for the use of services.
If the third-party provider discontinues its services, or terminates the contractual relationship with the CLIENT, or blocks or suspends its services for the CLIENT, this will have no effect on the contractual performance on the part of the CONTRACTOR. In particular, the CLIENT shall remain obligated to pay the fee for the services. In all other respects too, the CONTRACTOR shall not accept any warranty or liability for actions of such third-party provider, especially when it comes to data protection and data security.
10. Data Security, Data Protection, Privacy Agreement
The parties shall comply with the applicable provisions on data protection, particularly those in effect in Germany, and shall obligate their employees, vicarious agents, and other representatives deployed in connection with the agreement and its execution to observe with the GDPR where such persons are not already been obligated accordingly.
If the CLIENT collects, processes, or uses personal data and transmits such data to the CONTRACTOR, the CLIENT shall guarantee that it is authorized to do so under applicable, particularly data protection, provisions. In the event of infringement, the CLIENT indemnifies and holds the CONTRACTOR harmless from all third-party claims as well as from re-sulting indirect and direct damages, costs, expenditure, and other disadvantages on the part of the CONTRACTOR.
Where the transmitted data are personal data, the gathering, processing and use of such personal data by the CONTRACTOR is exclusively carried out under a corresponding data processing commission, that is, the CLIENT, in its capacity as the data controller, shall re-main responsible for compliance with data protection provisions. There is no transfer of function to the CONTRACTOR. The CLIENT undertakes, before the CONTRACTOR begins to perform services, to inform the CONTRACTOR whether and to what extent the CLIENT will transmit personal data via the PLATFORM, as well as about the applicable categories of the personal data. The CLIENT shall submit to the CONTRACTOR a draft agreement for a data processing agreement in accordance with Article 28 III GDPR in a timely manner, so that such agreement can be negotiated and signed by the parties before the CONTRACTOR begins performing services.
The CONTRACTOR shall take into account the statutory requirements of contract data processing and the instructions of the CLIENT (such as compliance with deletion and blocking obligations).
The CONTRACTOR shall implement the technical and organizational security provisions and measures according to Articles 24,32 GDPR. The CONTRACTOR shall, in particular, protect the services and systems under its control and application data transmitted by or concerning the CLIENT and any other data from the unauthorized obtainment, storage, modification, and any other unauthorized access or attacks – be it through technical measures, viruses, other malicious programs or data, or physical access – by employees of the CONTRACTOR or a third party, regardless of the manner in which this may occur. For this purpose, the CONTRACTOR shall take appropriate and customary measures that are in line with state-of-the-art technology, particularly antivirus protection and protection against similar malicious programs, as well as any other measures designed to secure the CONTRACTOR’s facilities, including against burglary.
The CONTRACTOR shall collect, process, and use CLIENT-related data only to such extent as is required to execute the agreement. The CLIENT agrees to the collection, processing, and use of such data to this extent. This includes also written, phone, or e-mail messages and information for users about technical changes or errors in the use of the PLATFORM.
The obligations under Clauses 10.1–10.5 shall remain in effect even beyond the end of the agreement where application data and any other data continue to remain under the control of the CONTRACTOR. The obligation under Clause 10.6 shall remain in effect beyond the end of the agreement for an indefinite period of time.
The CLIENT is aware that the CONTRACTOR, where necessary for the purpose of executing the agreement, may rely for the performance of its obligations under Clause 1 of these LICENSING TERMS VideoManager on the services of third parties domiciled in the EU and, therefore, may also outsource data processing to them. The CLIENT hereby agrees to such outsourcing. The CONTRACTOR will not export and outsource data processing to non-EU or non-EEA member states, unless protection of the affected data equal to the standards of the EU law on data privacy is ensured by way of conclusion of an agreement with the respective data importer in accordance with the “Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to pro-cessors established in third countries under Directive 95/46/EC of the European Parliament and of the Council” (“EU-MODEL CLAUSES”). Whenever such export or outsourcing of data processing to entities outside the EU or EEA territory is intended or necessary in order for the CONTRACTOR to perform the contractually agreed services, the CONTRACTOR undertakes to inform the CLIENT thereof without undue delay. In the event the CLIENT consents to such export or outsourcing of data processing to entities outside the EU or EEA territory, the CLIENT, in its position as data controller as well as in its position as data exporter for the purpose of Art. 4 No 7 GDPR, hereby undertakes to duly conclude the EU-MODEL CLAUSES with the respective data importer.
The above obligations shall apply also where the CONTRACTOR performs services by employment of a third party.
11. Term of Agreement, Termination and Withdrawal
The agreement commences upon signature of the quote, unless a different point of commencement has been agreed. The PLATFORM’s booking period shall commence upon provision or transmission of the login data to the PLATFORM, unless a different specific date has been agreed. The login data will be communicated within four weeks of placing the order. If this fails for reasons for which the CLIENT is responsible, it will be deemed a breach on the part of the CLIENT. In the event, the PLATFORM’s booking period will then commence automatically four weeks following the signature of the quote.
The term of the agreement is derived from the CONTRACTOR’s quote. The initial term of the agreement (“INITIAL TERM”) shall be for two (2) years if the quote does not contain any information on the term of the agreement, and the parties have not reached any special agreement regarding the term of the agreement. The CLIENT shall have no regular right of termination during this term of the agreement. Unless the INITIAL TERM exceeds a period of two year, the contract term shall automatically and reiteratively be renewed for a period equal to the INITIAL TERM, unless either party terminates the agreement by writ-ten notice to the respective other party with a notice period of three months prior to the end of the contract term.
The right of the parties to terminate without notice for just cause shall remain intact. In particular, the CONTRACTOR may terminate the agreement without notice if the CLIENT is in arrears on the payment of the fee, or a substantial portion thereof, during two consecutive months or over a period of more than two months during which the CLIENT is in ar-rears on the payment of an amount that is equivalent to payment of the fee for two months.
The CONTRACTOR may delete the CONTENT uploaded to the PLATFORM by the CLIENT without further notice upon termination of the agreement. The CLIENT shall ensure the timely backup of its CONTENT.
In the event of force majeure, none of the parties is obligated to perform the contractual obligations for the duration of such force majeure. Examples of force majeure include, in particular, riots, fire, loss of electricity, storm damage, strike and lockouts, damage caused by construction, technical problems with the Internet beyond the control of the parties, and other circumstances for which the parties are not responsible. Each party shall notify the other party in writing immediately of an occurrence of force majeure.
The CLIENT’s withdrawal from the agreement and/or cancellation shall be excluded subject to an express provision in these LICENSE TERMS VideoManager, deviating individual contractual agreements, and mandatory statutory grounds for withdrawal. Should the CONTRACTOR agree to a request for withdrawal in exceptional circumstances, the CLIENT shall pay the CONTRACTOR a cancellation fee of 30 percent in connection with a request for withdrawal submitted up to four weeks prior to the scheduled commencement of services. If the CLIENT’s request for withdrawal is submitted after such date, the CLIENT shall pay the full contractual fee. The CLIENT shall be entitled to demonstrate greater savings in terms of expenditure or reduced services.
Where the performance of services owed under the agreement requires the cooperation of the CLIENT, the CONTRACTOR shall initially attempt to arrange a time and/or period of cooperation with the CLIENT. Such date or period shall be so far ahead of the date of the CONTRACTOR’s performance that the CONTRACTOR can render its services in a timely manner. If an agreement on such time or period of cooperation is not reached in a timely manner, or at any rate not within four weeks of the parties’ entering into the agreement, for reasons for which the CONTRACTOR is not responsible, the CONTRACTOR shall propose to the CLIENT three dates, requesting that the CLIENT choose one of the proposed dates within an appropriate period of no more than two weeks, and informing the CLIENT that the CONTRACTOR will terminate the agreement if the CLIENT fails to accept within the above period of time. If the CLIENT does not accept any of the proposed dates within the period, it will be deemed a breach on the part of the CLIENT. Upon expiry of such period, the agreement, in mutatis mutandis application of Section 643 Sentence 2 BGB (German Civil Code), shall be deemed cancelled, allowing the CONTRACTOR to demand the agreed remuneration, while setting off expenses that the CONTRACTOR saves and/or acquires in mutatis mutandis application of Section 649 Sentence 2 of the German Civil Law Code (“Bürgerliches Gesetzbuch”, “BGB”).
Where and insofar as service performance by way of provision of an ON-PREMISES-SOLUTION is agreed between the PARTIES, the CLIENT undertakes to ensure, that, immediately upon the end of term of the agreement on the provision of an ON-PREMISES-SOLUTION, the use of the PLATFORM insofar is discontinued and all copies of the PLATFORM created in connection with the implementation of the agreement are returned to the CONTRACTOR on suitable data carrier mediums or are deleted beyond recovery; in case of the latter, deletion shall be confirmed and evidenced in writing to the CONTRACTOR by way of transmission of a suitable written deletion protocol. The discontinuance of the use of the PLATFORM as well as the return or deletion of all copies of the PLATFORM pursuant to the previous sentence shall be carried out even without further request by the CONTRACTOR and, in any event, no later than one week after the end of term of the terminated agreement.
In case the use of the PLATFORM is continued in contravention of the provisions of this section 11.8 of these LICENSE TERMS VideoManager or in case that, in contravention of the provisions of this section 11.8 of these LICENSE TERMS VideoManager, not all copies of the PLATFORM created in connection with the implementation of the agreement are returned to the CONTRACTOR on suitable data carrier mediums or are deleted beyond recovery, CONTRACTOR shall be entitled to claim a contractual penalty from the CLIENT in the amount of up to 10,000.00 € per individual case. In case of a continuing breach, the CONTRACTOR shall be entitled to further contractual penalty claims in the same amount of up to 10,000.00 € for each commenced calendar week of the continued breach. The principles of continuation of offence are excluded. Any further claims of the CONTRACTOR for injunctive relief or damage compensation shall remain unaffected, whereas any amount actually paid in respect to CONTRACTOR’s claim for contractual penalty hereunder shall be offset against any further claim of CONTRACTOR for damage compensation.
Additionally, in case the use of the PLATFORM is continued in contravention of the provisions of this section 11.8 of these LICENSE TERMS VideoManager or in case that, in contra-vention of the provisions of this section 11.8 of these LICENSE TERMS VideoManager, not all copies of the PLATFORM created in connection with the implementation of the agreement are returned to the CONTRACTOR on suitable data carrier mediums or are deleted beyond recovery, CLIENT shall, without undue delay and on first demand, indemnify CONTRACTOR and hold CONTRACTOR harmless from and against any direct and indirect damages, costs, claims, expenses or other disadvantages in connection with such breach of the provisions of this section 11.8 of these LICENSE TERMS VideoManager.
12. Remuneration, Default, Right of Retention
All prices are quoted exclusive of the respective statutory value-added tax.
The invoiced amount is derived from the total of prices of the individual services over the accounting period, as well as from the other components agreed upon for the price calculation.
Unless agreed otherwise, the invoices shall be payable by the CLIENT without deductions within 14 days of the date of the invoice or, in case CLIENT receives the invoice later than that, without undue delay upon receipt of the invoice to the account specified in the invoice by the CONTRACTOR. Timely payment is determined by the date on which the CON-TRACTOR receives payment. If the payment is not credited to the account in a timely manner, the CLIENT will be deemed in default of payment, without there being a need for the CONTRACTOR to remind the CLIENT and/or set a time limit.
In the event of default on payment on the CLIENT’s part, the CONTRACTOR may withhold further services until the CLIENT has paid all outstanding payments in full or provided an appropriate security. In particular, the CONTRACTOR shall be entitled, for the duration of the default, to block access to the PLATFORM and/or exclude CONTENT from dissemination or publication. The CONTRACTOR shall also have a right to withhold performance if it becomes clear upon entering into the agreement that the CONTRACTOR’s payment claim is at risk due to the CLIENT’s deficient solvency. Any rights assigned to the CLIENT by the CONTRACTOR and/or rights of use granted to the CLIENT shall be deemed non-assigned and/or non-granted for the duration of the default; the effects of any assignment of rights/grant of rights of use to the CLIENT shall thus be suspended.
Bank fees shall be borne by the CLIENT. Checks and bills of exchanges will be accepted only by way of provisional performance. Unless agreed otherwise in express terms, payment shall be made in EURO by bank transfer.
The CLIENT shall be entitled to set-off and/or retention only on the basis of uncontested counterclaims or counterclaims affirmed by declaratory judgment.
13. CONTRACTOR’s Liability, Limitation
In the event of willful or gross negligence, as well as in the event of negligent injury to life, limb, or body, the CONTRACTOR shall have unlimited liability for all damages caused thereby, unless the law provides otherwise.
In the event of gross negligence on the part of non-executive employees, the CONTRACTOR’s liability with respect to property damage and financial loss shall be limited to the foreseeable damages typical of the agreement. This shall not apply to a breach of substantial contractual obligations. Substantial contractual obligations are obligations the performance of which renders the proper execution of the agreement feasible in the first place, the breach of which jeopardizes the attainment of the contractual purpose, and on the compliance with which the contracting parties may regularly rely.
In the event of minor negligence, the CONTRACTOR’s liability with respect to property damage and financial losses shall be limited to the foreseeable damages typical of the agreement, but only where a breach of a substantial contractual obligation is concerned. This shall also apply to lost profits and foregone savings.
In case of loss of data, the CONTRACTOR’s liability for damages shall be limited to the expenses and effort that would be necessary for the recovery of the lost data assuming that the CLIENT had properly and regularly stored data backups of the affected data. Aforesaid limitation of liability shall not apply where and insofar as the PARTIES, by concluding a corresponding individual agreement, have made the proper and regular storage of data backups part of CONTRACTOR’s contractually agreed service performance obligation.
The CONTRACTOR’s strict liability for damages under Section 536a BGB for defects at the time that the agreement is entered into shall be excluded.
Further liability for damages – without regard to the legal nature of the claim asserted – shall be excluded. This shall apply particularly to tortious acts pursuant to Sections 823, 831 BGB.
However, any unlimited liability of the CONTRACTOR under the provisions of the German Product Liability Act or due to fraudulent intent, absence of a warranted quality, acceptance of guarantee, or due to any mandatory statutory provisions shall remain intact.
The limitation period for warranty claims for defects, including damages, shall be one year, unless mandatory law prescribes a longer limitation period. For damages not based on defects, only the statutory limitation periods shall apply. The mandatory limitation periods under the German Product Liability Act, however, shall remain intact at any rate.
The CLIENT may transfer to a third party rights and obligations under or in connection with these LICENSE TERMS VideoManager and/or agreements subject to these LICENSE TERMS VideoManager only with the prior written consent of the CONTRACTOR.
The PARTIES are aware of the fact that the PLATFORM may be subject to export and/or import restriction pursuant to applicable law. In particular, the use of the PLATFORM and/or any technology linked to it may be subject to foreign state approval. Due to the fact, that CONTRACTOR has no control over what and what kind of CONTENT is processed and distributed via the PLATFORM, the PARTIES are in agreement and the CLIENT acknowledges that the it is the CLIENT’s or, respectively, the END CUSTOMERS sole re-sponsibility to comply with all applicable law on import / export restrictions. Therefore, the CLIENT undertakes to ensure that compliance with applicable law on import / export restrictions is ensured. The service performance obligation of the CONTRACTOR shall be subject to compliance with all applicable law on import / export restriction as well as any other related stipulations of applicable statutory law, non-fulfilment of which would deem the fulfillment of the CONTRACTOR’s service performance obligation impossible.
Legally relevant declarations and notifications to be submitted to the CONTRACTOR by the CLIENT upon entering into the agreement (such as setting of deadlines, notices of defects, rescission notices, or reduction) shall be made in writing to become effective.
Changes and additions to these LICENSE TERMS VideoManager and agreements subject to these LICENSE TERMS VideoManager shall be made in writing, unless applicable mandatory law prescribes any stricter form. This shall also apply to changing and waiving this pro-vision regarding the written form. The provisions of the Clause 14.5 below of these LICENSE TERMS VideoManager shall remain intact.
The CONTRACTOR may modify the content of these LICENSE TERMS VideoManager with the consent of the CLIENT where such change is considered reasonable from the CLIENT’s point of view and in consideration of the CONTRACTOR’s interests. The consent to such change shall be deemed given if the CLIENT fails to object to the change within four weeks of receipt of the notice of change. The CONTRACTOR undertakes to include in the notice of change instructions for the CLIENT about the consequences of failure to object.
Unless these LICENSE TERMS VideoManager provide otherwise in express terms and inso-far as applicable mandatory law does not prescribe any stricter form, the requirement of written form under these LICENSE TERMS VideoManager shall be met by sending and receiving documents signed in manuscript by fax or scanned by e-mail. Electronic declarations shall also satisfy the requirement of written form under these LICENSE TERMS VideoManager if the receipt and content of such declarations is mutually confirmed electronically.
If the CLIENT is an entrepreneur, these LICENSE TERMS VideoManager and agreements subject to these LICENSE TERMS VideoManager, including all legal disputes about or in connection with the conclusion, effectiveness, and execution thereof, shall be governed exclusively by the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980.
If the CLIENT is an entrepreneur, the venue of exclusive – and also international – jurisdic-tion for all disputes arising from or in connection with these LICENSE TERMS VideoManag-er or agreements subject to these LICENSE TERMS VideoManager, including all legal dis-putes about or in connection with the conclusion, effectiveness, and execution thereof, shall be Berlin, Germany. The CONTRACTOR may bring legal action also before any other legally competent court of law.
Should a provision of these LICENSE TERMS VideoManager or agreements subject to these LICENSE TERMS VideoManager be or become ineffective or unenforceable, the remaining provisions of these LICENSE TERMS VideoManager shall in no way be affected. In the event, the parties agree to replace such ineffective or unenforceable provision(s) with enforceable and effective provisions that shall come as close as possible to the economic purpose of the provision(s) to be replaced. The above provision shall apply accordingly to unintended omissions or gaps.
In any case of doubt, conflicting or contradicting provisions in the German language ver-sion (“Lizenzbedingungen VideoManager Pro”) and this English language version of the “Terms and Conditions of Use and Licensing of the VideoManager”, the provisions con-tained in the German language version shall prevail.
Last update: 27 April 2020
movingimage EVP GmbH
Stralauer Allee 7