Terms and Conditions including Licensing Terms of Atkon TV-Service GmbH for usage the tvServiceBox
Introduction
The Atkon TV-Service GmbH (referred to as “AG” in the following text) runs a data base under the URL of www.tvservicebox.com (referred to as “TV Service Page” in the following) via which Atkon TV-Service GmbH offers pre-produced footage and film sequences (referred to as “footage” in the following) to German and international TV stations (referred to as “users” in the following) for the purpose of further processing and usage in their own productions. The use of the TV Service Page adheres to the conditions of the listed below.
§ 1 Factual Area of Application, Changes
(1) The listed below constitute the sole basis for the legal relations agreed upon by the users of the TV Service Page and the AG. Possible terms and conditions of the user will not become part and parcel of the contract agreeme nt. They are explicitly objected to by these.
(2) The AG reserves the right to change these at any time and without specification of reasons. The user will be informed of changes by e-mail at least two weeks before their Inception. If theuser doesn't object to the new within two weeks after receiving the e-mail, the changed are deemed accepted. The AG will specify the meaning of this two weeks time limit in the e-mail containing the changed separately.
§ 2 Accreditation
(1) The user is entitled to the usage of the contractual services offered by the AG and to the access to the footage offered in the TV Service Page only if the user has accredited him-/herself by way of a registration procedure in advance. The user’s registration shall be understood as an offer to the AG for the usage of the contractual database on the basis of the contract conditions. A contract for the use of the database, object of agreement, can come about only with the accreditation of the user. A claim for accreditation of the user doesn't exist.
(2) Each user logs in with a self-specified user name and password. No user is entitled to the assignment of a specific user name or password.
(3) The user is obligated to give the information required for registration truthfully and completely. The user is not permitted to register under an alias, a pseudonym, a nickname, an abbreviation, a phantasy name or anything of the like. The user is obligated to correct any change to his/her registration data in his user account without delay.
(4) The user name and password of the user may not be passed on or otherwise made available to third parties by the user. The user name and password are to be kept safely and secured from any access of third parties to them by the user. The user is liable to the AG for the use of his/her account via his/her user name unless he/she cannot be faulted for an abuse by third parties.
(5) The user is obligated to notify the AG without delay as soon as he/she gains knowledge of an abuse or unauthorized change of his/her access data (user name and/or password) by an unwarranted third party. The user is – according to civil and penal law – strictly liable for all procedures effected via the use of the access data of the user. This also applies if the user permits or negligently facilitates the use of his access data to third parties, even if minor. The user is not liable if he has not violated his obligation to exercise diligence and is not responsible for the misuse of his user account.
(6) The AG will not pass on the user's password to third parties and will never ask a user per e-mail or telephone for his or her password.
§ 3 Services of the AG
(1) The AG makes the footage available in a database held under the URL www.tvservicebox.com . Regarding the fact that the AG’s services are free of charge, the AG will only provide the database, respectively the footage, according to availability.
(2) The presentation of the footage on the TV Service Page offers the possibility to order certain contents. The AG’s offer is understood exclusively as without ties and noncommittal.
(3) The user orders certain contents by choice via the internet, by e-mail or in any other form. After clicking the order button any order details will be displayed once again in a confirmation screen and can be corrected or confirmed by the user.
(4) Unless the ordered footage is provided for download immediately after the order, the AG will send an electronic confirmation of the receipt of the user's order without delay. The receipt confirmation does not yet constitute an acceptance of the contract by the AG.
(5) The order of the contents is for the AG only binding after acceptance, whereat acceptance happens by electronically forwarding (download) or delivering the footage regularly in any other way.
§ 4 Licensing, Usage Rights
(1) The user is entitled to the use of any footage obtained by him / her via the TV Service Page including services and works of third parties as detailed in the following regulations. Contingent, as well as additional licensing rights and/or licensing types that are administered by a collecting society, must be obtained and compensated for only by the user (see also § 6).
(2)This entitlement of the user is limited to a period of 6 (six) months beginning with the supply of the material.
(3) The ceded footage may exclusively be used in the scope of editorial, i. e. reporting broadcasts. The user is prohibited from any usage related to advertising and promotional statements respectively or usage for the purpose of direct or indirect merchandising.
(4) The user is entitled to publish, in part or wholly, the material provided to him by the AG via television, broadcast, wire, or similar technical devices or appliances by way of analog, digital or other transmission technologies – except the transmission via Internet - for free. This is valid for any possible broadcasting methods and independent of the legal form of organization (television subject to public law or private television). The user is not entitled to broadcast or in any way make accessible or available the ceded footage by way of the so-called pay-TV, TV-on-demand, video-on-demand, near-TV-on-demand for payment. The user is not entitled to use the ceded footage in any other way than the above explicitly granted ways, in particular not by supply or transmission in the internet.
(5) Any sublicensing or other further licensing, a transmission or the sale or rental to third parties of the AG’s footage is granted to the user only by the AG’s explicit consent in each individual case.
(6) Authorized access to the ceded footage is limited to the persons who colaborate in the genesis of broadcasts and productions for the scope of which the footage shall be used. The user is obligated to prevent any access to the ceded footage by persons other than the aforementioned authorized persons by adequate provisions. For the purpose of preventing the unauthorized access of third parties, the contractual footage is to be kept at a secured location.
(7) The user is authorized to use the footage, in part or wholly, within the scope of his/her own broadcasts and productions. (so-called German translates roughly to ). The user is prohibited from changing and/or altering the nature of and/or abridging in deviance from the ceded footage, the content of any such footage and of related text- and sound material, be it in part or wholly, without the AG’s written consent in case the footage has been labeled accordingly by the AG
(8) The user pledges to retain any mention of copy rights made known to him by the AG or detailed within the footage and to make mention of them in the scope of his/her broadcasts respectively. The user pledges to retain in unaltered condition any existing trade-customary references to the AG’s business practice and/or the business practice of its employees and/or subcontractors in the opening and/or closing credits and not to dispose of the aforesaid reference.
(9) The user pledges to refrain from any message- and context-changing use respectively or any otherwise misrepresenting use of the footage in his/her integration of the ceded footage into the production or broadcast intended by the user. The aforementioned restriction is particularly conducive to the protection of (corporate-) personal privacy rights of the persons and companies presented in the ceded footage. For this reason, the user also pledges to refrain from the use of the ceded images and/or image sequences respectively in any pornographic, racist, defamatory, libelous, or otherwise unlawful context or from the use in a manner which would constitute a violation of personal privacy rights or an infringement of common decency.
§ 5 Waiver
The user indemnifies the AG from any claims of third parties lodged against the AG in consequence of or due to any violation of the terms and conditions on the part of the user. This is not valid, if the user is not liable for the violation of rights.
§ 6 Notification of Collecting Societies
(1) Within the scope of the utilization of the ceded footage, the user pledges to undertake any possible necessary notification of the collecting societies concerned and to pay the according fees in proper form.
(2) The user indemnifies the AG from claims of third parties lodged by these parties against the AG in consequence of neglected purchase of or compensation for rights assumed from collecting societies.
§ 7 Liability
(1) The AG is liable for damages in full cases of (criminal) intent and gross negligence without limitation. In cases of negligent breaches of duty, the AG is only liable up to the amount of the predictable typical damage; this, however, is not true in cases of violations of life, body, health or freedom, as well as in cases of maliciously suppressed information about a deficiency or lack of guaranteed quality.
(2) The aforesaid regulations are also valid for damages caused by legal agents, executive employees or auxiliary persons of the AG.
§ 8 Termination of the Contract
(1) The ceded footage is provided to the user temporarily. The authorization for use expires according to the contractually regulated time lapse (§ 4, 1). The footage ceded to the user as well as any copies thereof are to be deleted completely and in proper order at the user’s expense or returned to the AG or destroyed in case of material cession by the AG. In case of a utilization in excess of the temporal limits laid down in the contract, the user must obtain the AG’s written consent.
(2) The legal relations that came to pass between the user and the AG by accreditation can be terminated in proper order in observance of a respite of one month before a specified month’s end.
(3) In case of use of the sent footage in contempt of the conditions of use specified in this contract (§5), the AG reserves the right to immediate extraordinary cancellation of the contract entered into with the user.
(4) Further, the AG reserves the right to immediate extraordinary cancelation if third parties should seek legal action against the AG or the user as a consequence of an editorial amendment of the ceded footage by the user addition or as a consequence of the use of this thus amended material.
(5) For the cases mentioned in § 8, clauses 2 – 4, the obligation to deletion, destruction, or return respectively, applies according to § 8, clause 1.
§ 9 Final Provisions
(1) For merchants according to the commercial code, fund assets or for artificial persons of public law Wiesbaden is the exclusive place of jurisdiction.
(2) No ancillary verbal agreements have been made. Changes and amendments to agreements reached require a supplementary contract in written form or per e-mail. The same is true for a waiver of the requirement of the written form.
(3) In as much as these regulations demand written form for the validity of the contractual partners’ declarations of intention, the transmission of the respective declaration of intention via fax or via e-mail is sufficient.
(4) Should individual regulations of the present licensing terms be or become invalid, the validity of the remaining regulations will remain inviolate. In place of the invalid regulation, a substitute regulation that will approximate the purpose of the invalid regulation as closely as possible and is legally sound is to be agreed on.
(5) The contractual relations between the user and the AG are subject to the law of the Federal Republic of Germany under exclusion of the regulations specified by the (CISG).
Status: Oktober 2007