General Terms and Conditions for Licensors
(Version: 28th March 2018)
These General Terms and Conditions apply for Licensors, who entered into a User Agreement and/or Licence Agreement with PANTAFLIX Technologies GmbH after 31st May 2018 and to those Licensors, who explicitly agreed to these General Terms and Conditions.
1. Scope of Application
1.1 These General Terms and Conditions for Licensors apply to all agreements on the licensing of video content for the VOD platform operated by PANTAFLIX concluded between licensors (each a "Licensor") and PANTAFLIX Technologies GmbH, Neue Schönhauser Str. 16, 10678 Berlin (hereinafter "PANTAFLIX").
1.2 Licensors may be only legal entities and natural persons and partnerships with unlimited legal capacity that are entrepreneurs.
1.3 General terms and conditions of the Licensor deviating from or supplementing these GTC for Licensors shall only apply if PANTAFLIX explicitly agrees to them in writing (text form shall not suffice).
2.1 "Current" means a production that is made available for TVOD exploitation in the licensed territory for the first time at the same time the DVD is released; three months following the date on which the DVD is released, a production will be referred to as "Library".
2.2 "DVD Release" means marketing and/or leasing/renting the production in the licensed territory for the first time in the form of DVD/Blu-ray.
2.3 "EST" (also electronic sell-thru) means the VOD exploitation of a production as a pay offering during which the production is provided to the end customers for unlimited use in terms of time in a form allowing them (i) to save a copy of the production on their end devices (download) and/or (ii) to repeatedly retrieve the production from an external storage location (e.g. server) without having to pay a fee exceeding the fee already paid once (also referred to as cloud service or digital locker). The end customers' right to retrieve the production from their local storage location or an external storage location shall not be affected by the termination of the user or licence agreement or of the granting of rights.
2.4 "Pay/Pay Offering" means the VOD exploitation of a Production in return for payment. An offering in return for payment is deemed to exist if the end customers must in each case pay a one-time separate fee for the fact that the production is made publicly accessible by way of EST and/or TVOD. Bundling offerings constitute Pay Offerings within the meaning of this definition.
2.5 "TVOD" (also transactional VOD or "pay-per-view VOD") means the VOD exploitation of a production as a Pay Offering to be used by the end customers for a limited period of time within a period of up to 48 hours after retrieving the production for the first time; within this period, the production may be retrieved as often as the end customer wishes.
2.6 "VOD" means the exploitation of the production by making it publicly accessible within the meaning of § 19a of the German Copyright Act (UrhG), meaning the right to make the production accessible to members of the public by wire and/or wireless means using analogue, digital and/or other transmission technology including all bandwidths, definition standards (e.g., low, standard, high definition, etc.) irrespective of the compression method and/or data rate with or without (interim) storage via broadcasting, telecommunications and/or other services in whole and/or in part in such a way that the members of the public may access the production from a place and at a time individually chosen by them.
2.7 "VOD Platform". The VOD Platform comprises the VOD platform that is operated by PANTAFLIX and accessible via www.pantaflix.com and/or other URL (also via so-called embedded players) and applications worldwide. This also includes so-called white label solutions that are offered in cooperation with other partners (also under their brand) in the following way: (i) the platform is operated by PANTAFLIX, (ii) the platform shows at least a PANTAFLIX co-branding (e.g. "powered by PANTAFLIX") and (iii) the agreements with the end customers regarding the use of the platform and the retrieval of content are concluded with PANTAFLIX. End customers can access the VOD Platform via any conceivable receiving devices (e.g., television, PC, tablet, mobile phone) including any additional devices (e.g., game consoles or set-top boxes) and via all possible channels (e.g., internet, TV cable, mobile communication network).
3. User Agreement and Conclusion of Licence Agreements
3.1 The conclusion of an agreement regarding the licensing of productions (see in this regard 3.3 below) is subject to Licensor's prior registration. For this registration, the data requested in the registration form provided by PANTAFLIX (such as name, address, legal form, bank data, VAT ID) must be entered completely and correctly and any requested documents (e.g., certification of exemption from withholding tax) must be uploaded. PANTAFLIX shall confirm the successful registration by email. On confirmation by PANTAFLIX, a user agreement regarding the use of the VOD Platform pursuant to the provisions of these GTC for Licensors is concluded between PANTAFLIX and the Licensor (hereinafter "User Agreement").
3.2 After the successful registration in accordance with 3.1, PANTAFLIX shall create an individual ("PANTAFLIX Pro") user account for the Licensor.
3.3 The Licensor may upload video content and accompanying materials via its user account. Prior to the upload, the Licensor must specify in each case the following license terms:
3.3.1 Details of the video content: such as genre, content, age rating, IMDb-URL
3.3.2 Form of exploitation: EST and/or TVOD
3.3.3 Licensed territory
3.3.4 Licensed language versions (original version and/or dubbed versions, subtitle language versions)
3.3.5 Licence term (unlimited in time or maximum term)
By uploading content, the Licensor submits an offer to PANTAFLIX for the conclusion of an agreement regarding the licensing of the uploaded content subject to the specified licence terms. The agreement (hereinafter "Licence Agreement") shall come into effect on release (i.e., making the content available to be retrieved by end customers) by PANTAFLIX (released contents are referred to as "Productions" or individually as "Production"). PANTAFLIX shall inform the Licensor about the release by e-mail.
3.4 In deviation from the procedure described under 3.1 and 3.3 above, User and Licence Agreements may also be concluded in writing (text form is not sufficient), using a form provided by PANTAFLIX. In case of conclusion of a User Agreement, PANTAFLIX will create an individual ("PANTAFLIX Pro") user account for the Licensor and provide the Licensor with the respective access data. After receipt, the Licensor shall verify the correctness of the stored data and shall enter further requested data (such as legal form, bank data, VAT ID) completely.
3.5 For the avoidance of doubt: PANTAFLIX is not obligated to accept possible offers regarding the conclusion of a User or Licence Agreement submitted by the Licensor.
4. User Account and Administration of Licence Agreements
4.1 The Licensor may administrate released Productions via its user account. Unless otherwise explicitly agreed by the parties in writing, the Licensor may unilaterally change the terms agreed on in the Licence Agreement in accordance with the functionalities of its user account, i.e. Licensor may change/adjust (i) the form of exploitation (EST and/or TVOD), (ii) the licensed territory, (iii) the licensed language versions, and/or (iv) the maximum term, without stating reasons after having given a 14 days' advance notice thereof by e-mail to email@example.com.
4.2 In addition, the Licensor may, at any time and without giving reasons, terminate the licence term for the Productions uploaded via its user account or temporarily suspend the exploitation of the Productions, provided that the Licensor has given 14 days' advance notice thereof by e-mail to firstname.lastname@example.org.
4.3 The changes made by the Licensor in accordance with 4.1 or 4.2 shall take effect as soon as the change/adjustment to the relevant Production available to end customers has been carried out by PANTAFLIX, but no later than three working days following the change/adjustment of the Licensor in accordance with 4.1 or 4.2. For the avoidance of doubt, the end customers rights to use the services booked prior to the implementation of the change, termination or suspension subject to the original terms (i.e., to retrieve individual Productions for a maximum of 30 more days and 48 hours and Productions of a season purchased in its entirety for a maximum of 180 days and 48 hours) shall remain unaffected.
4.4 If the information provided by the Licensor changes after completion of the registration process, the Licensor shall be obligated to notify PANTAFLIX of this without delay. Notification may be effected via the user account (by changing the relevant data) or by e-mail.
4.5 Within the ongoing contractual relationship, PANTAFLIX is entitled to demand that an extract from the commercial register or trade register and/or other documentation or information that appears to be necessary or useful for the maintenance of the contractual relationship be provided.
4.6 The Licensor must keep its access data for its user account at any time secret and safeguard the access data carefully. In addition, the Licensor is obligated to inform PANTAFLIX immediately if there are indications that the access data have been misused by any third party. PANTAFLIX will not disclose the Licensor's password to third parties and will never ask the Licensor for the password by e-mail or telephone. The Licensor is generally liable for all activities carried out using its access data if the Licensor is responsible for the misuse of its access data.
4.7 User accounts are not transferable.
5. Accompanying Material; Music Cue Sheets
5.1 The Licensor shall also provide accompanying material ("hereinafter "Accompanying Material") to PANTAFLIX in the course of uploading a Production. The Accompanying Material must include the following materials, in particular: (i) meta data of the Production (incl. age rating), (ii) trailer/teaser of the Production, (iii) PR material, especially a brief description of the Production, and (iv) at least three still frames from the Production with a resolution of 300 dpi, which may be used for advertising and promotion purposes.
5.2 The Accompanying Materials are to be provided in each case in all licensed language versions and free of advertising (i.e., in particular without pre-roll or post-roll advertising, overlays or advertisement interruptions).
5.3 The Licensor shall provide PANTAFLIX with a list containing all works and items in the Production and the Accompanying Materials (especially teaser/trailer) the intellectual property rights of which are enforced by GEMA or other music copyright collecting societies (hereinafter: "Music Cue Sheet").
6. Grant of Rights
6.1 For the duration of the licence term, the Licensor grants PANTAFLIX the following non-exclusive rights in the Productions and the Accompanying Materials for the exploitation via the VOD Platform within the framework of the terms set out in the License Agreement:
6.1.1 If agreed on accordingly in the Licence Agreement: The right to exploit the Production in the form of TVOD.
6.1.2 If agreed on accordingly in the Licence Agreement: The right to exploit the Production in the form of EST.
6.1.3 The reproduction right, meaning the right to reproduce the Production if and to the extent this is necessary for the exploitation of the TVOD right granted under 6.1.1 and/or the EST right granted under 6.1.2.
6.1.4 The advertising and clip exploitation right, meaning the right to advertise the Productions and their exploitation (also together with other works) in all media (e.g., on television, at the cinema, in outdoor advertising, on videograms, online or on social media) in the manner customary in the sector as early as eight weeks prior to the commencement of the licence term. This includes the right to use extracts (each extract may not be longer than eight seconds) from the Production and/or its picture and/or sound elements for the purpose of advertising the Production, its exploitation, PANTAFLIX and/or the VOD Platform in all media, including the right to produce, reproduce and distribute press releases and other advertising signage to the customary extent. This right also includes the authorisation to use picture and/or sound material, (screen) names and biographies of those involved in the Production and other elements of the Production (for the avoidance of doubt, the right to use the Production in order to advertise products or services of third parties if they are unrelated to the contractual VOD exploitation is not included). Moreover, the rights granted include the right to use excerpts of up to 10 minutes taken from the Production on the VOD Platform for the aforementioned purposes.
6.1.5 The promotion right, meaning the right, e.g., to give end customers free vouchers or money on account for the VOD Platform or for certain Productions within the VOD Platform and to make the Productions available free of charge subsequent to prior and written approval by the Licensor (e-mail is sufficient) for the purpose of advertising the VOD Platform within the framework of time-limited campaigns (that may be repeatedly carried out during the contractual term also via third parties).
6.1.6 The right to use graphics files, names, companies, logos, company symbols, trademarks, titles or other business names that are used in connection with the provision of the Productions, to the extent this is necessary for the contractual exploitation of the Productions.
6.2 The grant of rights specified in 6.1 does not include the intellectual property rights in works and items in the Production that are enforced by GEMA or other music copyright collecting societies.
6.3 The grant of rights in 6.1 shall apply to all retrieval methods, irrespective of whether transmission is analogue or digital, wired (regardless of which cable form, for example, TV cable, optical fibre, copper line, telephone line and internet) or wireless and irrespective of which end device the end customer uses (mobile end devices, e.g., mobile phone, tablet, laptop, or stationary end devices, e.g., PC, game consoles, set-top box, television).
6.4 PANTAFLIX is not entitled to grant and/or transfer the rights acquired under this Agreement to third parties above and beyond the extent necessary for the fulfilment of the rights mentioned in 6.1.4, 6.1.5 and 6.1.6.
6.5 The parties agree that PANTAFLIX has no obligation to exploit the Productions. If PANTAFLIX does not exploit the Productions pursuant to this Agreement, i.e., if PANTALFIX does make such Productions not available to end customers on demand, the Licensor shall be entitled to revoke the grant of rights for the relevant Productions via the user account or by written declaration to PANTAFLIX (text form is not sufficient).
7.1 The Licensor warrants and guarantees that the Production and the Accompanying Materials do not violate any legal provisions (of the law relevant in the respective licensed territory), in particular, that the Licensor has acquired all copyright and intellectual property rights and other rights that are required for the exploitation by PANTAFLIX within the scope set out in the License Agreement. The only exceptions to this are the rights asserted by GEMA or other music copyright collecting societies; such rights must be acquired from GEMA or any other music copyright collecting society by PANTAFLIX at its own expense. Upon request, the Licensor shall provide evidence of the rights specified in the first sentence of this paragraph by presenting complete documentation.
7.2 The Licensor warrants and guarantees that the Music Cue Sheet is correct and complete. Moreover, the Licensor warrants and guarantees that the information regarding age ratings provided by the Licensor is correct and that the Productions have not been indexed by the relevant competent authorities for reasons relating to the protection of minors. If Productions are or become indexed, PANTAFLIX is entitled to withdraw from the License Agreement with respect to the Production in question without giving notice.
7.3 In cases in which the rights granted under the License Agreement are adversely affected by third parties, the Licensor is obligated to initiate all suitable measures to avert such adverse effects and to notify PANTAFLIX of such adverse effects without delay after gaining knowledge of such matters. PANTAFLIX is entitled to initiate suitable measures to avert such adverse effects on its own. The Licensor is obligated to support PANTAFLIX in the defence of the rights. The costs incurred by PANTAFLIX due to the defence of the rights granted shall be reimbursed by the Licensor.
7.4 With regard to all of the warranties and guarantees assumed by Licensor, the Licensor shall indemnify PANTAFLIX from any liability and all third-party claims on first request and shall compensate PANTAFLIX for any and all losses and/or costs (including court costs and lawyers' fees at the statutory rate) arising in connection with the contractual exploitation or because the exploitation of the contractual rights is or becomes adversely affected, unreasonable or impossible.
8. Operation of the VOD Platform
8.1 PANTAFLIX warrants that the annual average availability of the VOD Platform will be at least 98%. This does not include times in which the VOD Platform is not available and/or only available to a limited extent via the internet due to technical or other problems for which PANTAFLIX is not responsible and due to appropriate and reasonable maintenance work.
8.2 PANTAFLIX may limit access and availability to the VOD Platform if this is necessary for network operation security, maintaining network integrity, in particular, for avoiding serious disruptions to the platform, the network, the software or the data saved, the interoperability of the services or data protection.
8.3 PANTAFLIX shall encrypt all Productions using a digital rights management system (DRM) in order to ensure access and use-controlled distribution. In this context, PANTAFLIX shall particularly ensure that the requirements under the law on the protection of minors are observed (e.g., by including a process for age verification or the so-called JusProg system) However, for the avoidance of doubt, PANTAFLIX is under no obligation to check the information regarding age rating provided by the Licensor.
8.4 PANTAFLIX shall moreover ensure the implementation of a territorial limitation (licensed territory) by the Licensor within the scope of the technical possibilities available to PANTAFLIX by way of geo-blocking, taking into account the legal requirements (in particular the requirements set out in the regulation on ensuring the cross-border portability of online content services in the internal market).
9.1 PANTAFLIX shall pay the Licensor the fees specified in Annex 1 for the contractual exploitation of the rights granted under the relevant Licence Agreement.
9.2 If PANTAFLIX generates profit from the exploitation of the contractual rights in a calendar month, PANTAFLIX shall provide a corresponding statement of accounts to the Licensor within a period of 30 days following the end of the relevant calendar month.
9.3 Unless otherwise agreed in writing, the fees shall become due (i) when a balance of at least €50.00 has been reached at the end of a calendar month and (ii) in each case at the end of the calendar month following the end of the calendar half year, irrespective of a minimum amount. The due date is moreover based on the following provisions:
9.3.1 If the Licensor has informed PANTAFLIX of its VAT ID number, the fees shall be paid as credit note to Licensors within the EU. PANTAFLIX will then be liable to pay VAT (so-called "reverse charge procedure"). The amount will be credited to the bank account specified in the Licensor's user account.
9.3.2 If no VAT ID number is available or if the Licensor is outside the EU, payment shall not be due before a proper invoice has been received and a 14-day payment period following the receipt of the invoice has expired (in addition to the aforementioned requirements listed in 9.4).
9.4 The fees shall be reduced by any statutorily required withholding tax. The fees shall be paid in euros at the rate determined by the payment institution at the time the payment is initiated. Any transaction costs incurred due to the transfer of the fees shall be borne by the Licensor.
9.5 The Licensor is entitled to instruct an independent auditor to review the documents on which the accounts are based once a year. PANTAFLIX is entitled to render the end customers' personal data contained in the documents on which the accounts are based anonymous. If the auditor instructed to review the documents is not otherwise sworn to secrecy, the auditor shall enter into a confidentiality agreement with PANTAFLIX, which prohibits the auditor from disclosing any information to third parties. The Licensor shall treat any and all information received in connection with the audit with confidentiality. The Licensor shall bear the costs for the audit unless the audit shows that the Licensor was underpaid by more than 5% within the audited period. In such cases, PANTAFLIX shall reimburse the Licensor for the costs of the auditor instructed to carry out the audit up to the standard amount of the relevant fee schedule.
9.6 The fees agreed on in 9 fully covers any and all services provided and rights granted by the Licensor.
10. Requirements Regarding the Contents; Licensor's Liability for Defects
10.1 The Licensor warrants and guarantees that the Productions and the Accompanying Materials provided do not violate third-party rights or applicable law. Storing pornographic, extreme right or left-wing content or content that is contrary to accepted principles of morality is not permitted without notifying PANTAFLIX of this in writing (text form is not sufficient).
10.2 The Licensor is liable that the Productions and the Accompanying Materials have the quality/properties described in Annex 2 and are free of technical or other defects at the time they are provided.
10.3 Without prejudice to further contractual/statutory claims, PANTAFLIX is entitled to delete or block the Productions and/or the Accompanying Materials if they are defective or illegal (i.e., unlawful or encumbered with third-party rights).
10.4 In the event the Productions are deleted or blocked, any and all performance and payment obligations of PANTAFLIX will cease to apply until the Licensor delivers a lawful Production free of defects and PANTAFLIX accepts such Production. The Licensor may not derive compensation claims against PANTAFLIX from the deletion or blocking of the defective and/or illegal Productions (or Accompanying Materials), irrespective of whether the deletion or blocking was effected by PANTAFLIX or by the Licensor itself.
10.5 With regard to the rest, PANTAFLIX is entitled to the statutory warranty claims.
11. Limitation of Liability
11.1 Except if essential contractual obligations are violated, PANTAFLIX will be liable for damages only if and to the extent that PANTAFLIX, its legal representatives, senior executives or other vicarious agents are culpable of having acted intentionally or with gross negligence.
11.2 Should essential contractual obligations be violated, PANTAFLIX will be liable for any culpable conduct of its legal representatives, senior executives or other vicarious agents (the term "essential contractual obligations" meaning such obligations the fulfilment of which makes the due performance of the agreement possible in the first place, on the compliance with which the Licensor may normally rely and the breach of which jeopardises the achievement of the contractual purpose). In this case, PANTAFLIX's liability will be limited in terms of amount to the typical loss foreseeable at the time the Agreement was concluded.
11.3 The exclusions and limitations of liability referred to above will not apply in the event PANTAFLIX has assumed specific warranties, in the event of damages resulting from injury to life, limb or health and in the event of mandatory statutory provisions (e.g., the German Product Liability Act (Produkthaftungsgesetz)).
12. Term of Agreement and Term of Licence
12.1 The term of the User Agreement commences upon the registration of the Licensor in accordance with 3.1 or upon the conclusion of a corresponding written agreement in terms of 3.3. The User Agreement will be concluded for an indefinite term and may be terminated by either party in text form observing a notice period of 30 days, effective at the end of a month.
12.2 Unless otherwise agreed, the parties may terminate the Licence Agreements at any time without stating reasons. The Licensor may issue a notice of termination by removing the relevant Production from the VOD Platform using the corresponding function in its user account after having given a 14 days' advance notice thereof by e-mail to email@example.com. Alternatively, the Licensor may terminate the License Agreement in writing (text form is not sufficient) with a 14 days' notice period. PANTAFLIX may provide its notice of termination in text form.
12.3 In the event the User Agreement is terminated, any and all Licence Agreements concluded with the relevant Licensor will also terminate automatically. Conversely, the termination of a Licence Agreement will not affect the User Agreement.
12.4 The right to terminate for cause remains unaffected.
12.5 Unless otherwise agreed, notices of termination must be given in writing (text form is not sufficient).
13. Final Provisions
13.1 If individual provisions of this Agreement should be or become invalid, this will not affect the validity of the rest of the Agreement.
13.2 Even after the contractual term, the parties undertake to maintain strict confidentiality towards third parties regarding the contractual terms and conditions and the information concerning the respective other party (i) that becomes known within the context of the cooperation and is designated as confidential at that time, (ii) that has not already been known or will not become known either to the receiving party or to the public ("Confidential Information"). Third parties within the meaning of this provision do not include: (i) companies affiliated with the Licensor, (ii) companies in which PANTAFLIX holds a direct or indirect interest, (iii) cooperation partners of the white label solutions mentioned in 2.6; (iv) auditors/accountants and lawyers, (v) prospective buyers or investors, in each case provided that (i) the disclosing party has obligated such persons to maintain secrecy and (ii) the party disclosing information in accordance with this clause is responsible for such persons' acts and failures to act to the same extent as if such party was acting itself. Furthermore, Confidential Information may be fully disclosed or passed on in the following cases: (i) to the extent necessary in order to comply with applicable law, in order to meet the requirements and rules of the stock exchange at which the shares of the party or its parent company are listed and/or in order to follow final and absolute orders issued by a court of the competent jurisdiction, by an arbitral tribunal or by any other competent authority, (ii) to enforce contractual rights and (iii) information from the accounts rendered pursuant to 9 to the extent necessary for rendering account to Licensor's superior licensor.
13.3 PANTAFLIX may involve third parties for the purpose of performing the contractual services and operating the VOD Platform.
13.4 Unless otherwise agreed, any amendments and additions must comply with written form requirements to be legally valid. The same applies to any waiver of this written form requirement.
13.5 The language of the Agreement is English unless the Agreement is concluded in written form (offline) with Licensors who have their registered office and/or a branch in Germany, Switzerland and/or Austria. In this case, the language of the Agreement is German.
13.6 The Agreement is subject to the laws of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of 11 April 1998 is excluded. Place of performance and sole place of jurisdiction is Munich.
Fee Agreement Regarding 9.1 of the General Terms and Conditions for Licensors
For the contractual exploitation of the rights granted under the relevant Licence Agreement, PANTAFLIX will pay the Licensor a share of the fee paid by the end customers for the retrieval of the Production (within the context of TVOD and/or EST) and actually received by PANTAFLIX ("Gross Revenues") minus (i) VAT (the result, hereinafter the "Net Revenues"), and minus (ii) Distribution Costs (to be deducted from the Net Revenues) in the amount of 70% with regard to Currents and in the amount of 50% with regard to Libraries.
Distribution Costs shall include:
(i) a flat charge in the amount of 5% of the Net Revenues for any payments to copyright collecting societies and any film charges, and
(ii) a flat charge in the amount of 20% of the Net Revenues for payment service providers.
Agreement on the Quality/Properties Regarding 10.2 of the General Terms and Conditions of Licensors