The following Standard Terms & Conditions (hereinafter: “T&Cs“) contain many important provisions that affect your rights and obligations if you license your DATA to us and to further interact with us. We suggest you download the T&Cs to your computer or print a copy of these T&Cs for your records.
earthTV® network GmbH (hereinafter: “ETV“), is the producer and distributor of ETV PROGRAMS such as “The World Live” generated and distributed via the internet platform and web application earthTV® Cloud (hereinafter: “ETV CLOUD“) that offers producers of data an opportunity to commercially license their data (hereinafter: “DATA”) to ETV and via ETV to ETV program licensee clients (hereinafter: “ETV LICENSEEs”). Producers of such live DATA (hereinafter: “DATA CONTRIBUTORS“) that have entered into a countersigned COOPERATION AND DATA LICENSING AGREEMENT can submit their DATA in form of DATA streams or otherwise continuously updated DATA to ETV (this process hereinafter the “SUBMISSION”) by accepting ETV´s T&Cs and by making available and submitting the DATA and information requested by ETV in the course of the SUBMISSION.
DATA that have been made available to ETV in accordance with these T&Cs and which have been approved and accepted for distribution by ETV (hereinafter: “APPROVED DATA“) will be made available to ETV LICENSEEs for licensing as part of one of the ETV PROGRAMS (hereafter: “PROGRAMS”) in accordance with individual provisions.
TheT&Cs apply to the contractual relationship between the DATA CONTRIBUTOR and ETV that is constituted by the countersigned COOPERATION AND DATA LICENSING AGREEMENT (hereinafter: “AGREEMENT”), in particular to all aspects of the actual SUBMISSION of the DATA and to the licensing of APPROVED DATA to third parties.
1. Applicable terms
1.1 ETV offers and allocates its services exclusively based on and in accordance with these T&Cs together with the current terms and specifications for the DATA CONTRIBUTOR´s and ETV LICENSEEs´s as published in the Terms section of the ETV website at any time.
1.2 ETV reserves the right to amend and to change the T&Cs at any time with the according changes to take effect in the future. The effective version of the Standard Terms & Conditions is available on the ETV website at all times. The DATA CONTRIBUTOR will be informed by ETV about any update of the T&Cs in text form (§ 126b BGB, German Civil Code), such notice to include the date on which the according revised version of the T&Cs shall become effective (hereinafter: “Change Date”). The DATA CONTRIBUTOR may declare his dissent with the incorporation of the amended Standard Terms & Conditions, such declaration of dissent to reach ETV within 2 weeks from ETV´s according notice but no later than on the Change Date. If no such notice of the DATA CONTRIBUTOR´s dissent is delivered to ETV in time, all according changes are validly incorporated into the AGREEMENT with prospective effect on the Change Date. In case of a timely delivery of the DATA CONTRIBUTOR´s dissent, ETV shall be entitled to terminate the AGREEMENT, such termination to take effect on the Change Date.
1.3 Any provisions that differ from these T&Cs have to be agreed between ETV and the DATA CONTRIBUTOR in writing to become valid and part of the AGREEMENT between the DATA CONTRIBUTOR and ETV. Any standard terms and conditions of the DATA CONTRIBUTOR that differ from or contradict these T&Cs shall only be incorporated into the AGREEMENT between the DATA CONTRIBUTOR and ETV once they are explicitly confirmed by ETV in writing. Such inclusion of the DATA CONTRIBUTOR´s standard terms and conditions shall not affect the continued applicability of these Standard Terms & Conditions. Whenever any such DATA CONTRIBUTOR´s standard terms and conditions were validly incorporated into the AGREEMENT but contradict any part of the Standard Terms & Conditions, the according stipulation in the T&Cs shall prevail.
1.4 Apart from that any and all DATA CONTRIBUTOR´s standard terms and conditions shall be non-binding and without any obligation to ETV even though their inclusion was not expressly contradicted and/or disputed by ETV or in case the DATA CONTRIBUTOR expresses that he will only perform the AGREEMENT upon inclusion of his own general terms and conditions.
2.1 The term of the AGREEMENT commences on the EFFECTIVE DATE of the AGREEMENT if not agreed otherwise will continue for a period of two (2) years unless earlier terminated in accordance with the terms hereof.
2.2 Hereafter, the term of the AGREEMENT will automatically renew on a yearly basis unless either party provides the other with at least one hundred eighty (180) days’ written notice prior to the end of the current term of its intention not to renew or otherwise terminates this AGREEMENT in accordance with its terms.
2.3 The right of either party to terminate the AGREEMENT immediately for cause remains unaffected. In particular, any misrepresentations and/or false information by the DATA CONTRIBUTOR about his identity or any of his DATA shall constitute such cause for an immediate termination of the AGREEMENT by ETV.
3. SUBMISSION and approval of DATA
3.1 The required standards for technical specifications and for the nature and content of a DATA (hereinafter: “STANDARDS”) include among others the minimum requirements to include the exact location (geo location longitude/latitude) of the DATA’s production. Full specifications and latest updates of the STANDARDS will be published on the ETV website and shall be applicable in their version current at the time of the respective SUBMISSION.
3.2 ETV provides on ETV CLOUD a streaming point for SUBMISSIONs of media content as well as an option to add metadata to the DATA and to leave further requested or optional information with regards to the DATA.
3.3 The DATA CONTRIBUTOR´s DATA, respectively the technology used by the DATA CONTRIBUTOR for this purpose, must comply with the applicable STANDARDS as available on the ETV website. Notwithstanding, ETV shall be under no obligation whatsoever to accept and/or approve any DATA even if it complies with all STANDARDS and the DATA CONTRIBUTOR has truthfully supplied all information requested from him in the AGREEMENT and in the course of the SUBMISSION of the DATA to the ETV CLOUD. Although ETV will use commercially reasonable efforts to instantly accept or reject submitted DATA, ETV shall be under no obligation whatsoever to accept or reject a DATA within any specific time. The DATA CONTRIBUTOR will be notified via email about the approval of a DATA and its inclusion in the ETV PROGRAMS via the ETV CLOUD. ETV shall still have the right to sort out and expulse any such APPROVED DATA at any time.
4. Grant of Rights
4.1 Unless explicitly agreed otherwise in the AGREEMENT, any and all rights transferred, granted and assigned to ETV by virtue of the AGREEMENT shall be exclusive and without restriction as regards content, term and territory.
4.2 ETV shall have the exclusive right to use and exploit DATA and APPROVED DATA in any and all ways, in particular to publish DATA and APPROVED DATA, to save on file/store in memory, to archive, to copy, duplicate and reproduce, to distribute, to exhibit, to communicate to the public in non-material form, in particular to present, to broadcast, to communicate DATA and APPROVED DATA by means of video and audio recordings and to communicate broadcasts of such recordings, regardless of the technical format, the means of transmission and the configuration of communication.
4.3 This shall include ETV´s right to edit, modify, and alter any DATA and APPROVED DATA, to combine them with any other content of whatever nature, and to use any such edit, modification and alteration or compound content as set out herein.
4.4 Unless explicitly agreed otherwise in the AGREEMENT, any and all rights transferred, granted and assigned by the DATA CONTRIBUTOR by virtue of the AGREEMENT may be exercised by ETV and ETV LICENSEEs via any analogue or digital means of communication known at the time of the conclusion of the AGREEMENT or hereafter devised including without limitation via print, websites, other electronic formats, mobile devices, TV, cinema, exhibitions and may be used for any purpose of any nature including without limitation for news broadcasts, programs reports and films, press articles, press releases as well as for advertising, marketing, publicity, promotions and corporate communications, be it for ETV or for any of ETV´s third party licensees.
4.5 ETV shall be entitled to authorize and to sublicense to ETV LICENSEEs, to third party content distributors (hereinafter: “ETV DISTRIBUTORS”) and their respective clients and to any other third party licensee the right to exercise any of the rights granted to ETV hereunder.
5. Distribution of APPROVED DATA
5.1 ETV will make APPROVED DATA available to ETV LICENSEEs as licenses for the use of the according APPROVED DATA directly from ETV but may also use third party ETV DISTRIBUTORS to license APPROVED DATA to the ETV DISTRIBUTORS´s customers via different platforms.
5.2 All APPROVED DATA will be offered to ETV LICENSEEs as part of Program Licenses.
5.3 ETV and ETV´s DISTRIBUTORS will offer the DATA CONTRIBUTOR´s APPROVED DATA to ETV LICENSEEs and customers through a number of different Program Licenses.
6. DATA CONTRIBUTOR´s LICENSE FEE, Accounting and Payment
6.1 In the AGREEMENT with the DATA CONTRIBUTOR a fixed royalty fee per distributed content day must be agreed (hereinafter: “LICENSE FEE”). If no LICENSE FEE is agreed, neither party will pay any fee to the other party, the DATA are contributed in return for marketing values provided by ETV to the DATA CONTRIBUTOR, such as introducing/promoting the DATA to ETV LICENSEEs.
6.2 ETV will pay the LICENSE FEE monthly to the DATA CONTRIBUTOR and will issue and make available to the DATA CONTRIBUTOR.
6.3 Payments of DATA CONTRIBUTOR’s LICENSE FEEs will be made monthly within 30 days after the date of issue of the according LICENSE FEE statement by bank or electronic funds transfer. Any monthly total in LICENSE FEEs below a minimum of thirty Euros (€ 30.00) will be held by ETV for the DATA CONTRIBUTOR and transferred into the DATA CONTRIBUTOR´s following LICENSE FEE statement until the thirty Euros (€ 30.00) minimum has been reached and will then be paid out to the DATA CONTRIBUTOR. In any case, any and all fees or charges demanded for the transfer of DATA CONTRIBUTOR’s LICENSE FEEs by the involved banks shall be barred by the DATA CONTRIBUTOR.
6.4 If a LICENSE FEE in accordance with the statutory provisions on value added tax (VAT) is subject to VAT, ETV will pay such VAT on the LICENSE FEE as orderly invoiced to earth TV by the DATA CONTRIBUTOR, such invoice to include the DATA CONTRIBUTORS VAT ID.
7. Moral Rights and Credits
7.1 With the SUBMISSION the DATA CONTRIBUTOR, to the extent allowed by law, waives all moral rights that he may have in regard to his according DATA. The DATA CONTRIBUTOR at the same time, to the extent that such waivers are not permitted by the applicable law, agrees that he will not enforce such moral rights against ETV or ETV LICENSEEs or DISTRIBUTORS of ETV.
7.2 Wherever feasible and within the scope of what would be regarded as standard practice in the individual situation, ETV will use commercially reasonable efforts to to pass on to the ETV LICENSEEs the name of the DATA CONTRIBUTOR as credit line within the metadata of the DATA available via the ETV CLOUD. However ETV shall not be liable for a lack of such credit or for an incorrect credit in connection with the usage of an APPROVED DATA by an ETV LICENSEEs or any other third Party.
With the SUBMISSION the DATA CONTRIBUTOR also accepts and acknowledges that it is common business practice for commercial uses of such DATA that the creator is not credited.
8. Liability, Warranties and Indemnification
8.1 The DATA CONTRIBUTOR warrants and guarantees that any usage of his DATA and his APPROVED DATA by ETV, ETV DISTRIBUTORS, ETV LICENSEEs and other licensees of ETV that remains within the scope of the intended exploitation as set out in the AGREEMENT,
a. does not infringe any third-party interests or rights protected by law, in particular no contractual rights or any personality rights, copyrights or ancillary copyrights or industrial property rights
b. complies with the standards and principles of any applicable laws, especially, but not limited to, press laws, in particular as set out in the Press Code of the German Press Council, the Youth Protection Act, the Interstate Broadcasting AGREEMENT and the Federal Press Acts
c. is not unlawful for any other reason, in particular due to infringement of DATA protection, regulations against unfair competition or criminal legislation.
8.2 The DATA CONTRIBUTOR warrants and guarantees that he is not a member of any collection society that may have claims regarding the use of any of the DATA CONTRIBUTOR´s intellectual property rights, in particular for usage fees or any other monetary claims.
8.3 The DATA CONTRIBUTOR warrants and guarantees to ETV, regardless of culpability, that his DATA and APPROVED DATA maintain the standards of the aforementioned regulations and that the required information and DATA that he provides to ETV in the course of the SUBMISSION for this purpose is complete and correct.
8.4 The DATA CONTRIBUTOR agrees to defend indemnify and hold harmless ETV, its affiliates, Distributors, licensees, officers, directors, employees and agents from and against any and all actual or alleged third party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable lawyer´s fees arising out of or in connection with any actual or alleged breach of any duty, representation or warranty contained herein or any actual or alleged act or material omission of the DATA CONTRIBUTOR or its employees or agents.
8.5 The DATA CONTRIBUTOR shall be fully and solely liable for any claims by any collecting societies arising from any use of the DATA CONTRIBUTOR´s DATA or APPROVED DATA that was within the scope of the intended usages as set out in the AGREEMENT. If ETV is charged with any such fees, the DATA CONTRIBUTOR must hold ETV free and harmless from any and all such claims. ETV may also set off any payments to the according collection societies from any of the DATA CONTRIBUTOR´s remuneration.
8.6 The DATA CONTRIBUTOR’s liability and obligation to indemnify in accordance with the preceding clauses shall apply to any and all DATA submitted by the DATA CONTRIBUTOR and remain unaffected by an expulsion of the respective DATA, its abortion by the DATA CONTRIBUTOR or by the termination of the AGREEMENT.
8.7 The parties are aware that the services under this AGREEMENT may be subject to export and import restrictions. The DATA CONTRIBUTOR represents and warrants that (i) the DATA are appropriate or available for use in any particular location and in compliance with all applicable laws and (ii) the DATA CONTRIBUTOR complies with import and export controls applicable for Germany and the European Union (EU) / European Economic Area (EEA), and, to the extent applicable, U.S. export controls. In particular, the DATA may not be produced: (i) from (or by a national or resident of) any country with respect to which the EU/EEA and/or Germany maintains trade sanctions prohibiting the exchange of goods and, to the extent applicable, Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the exchange of goods; or (ii) from anyone on or acting on behalf of an entity on any prohibited party, sanction or similar lists of the EU/EEA or Germany, or, to the extent applicable, from anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List. By SUBMISSION of the DATA, the DATA CONTRIBUTOR represents and warrants that it is not (a) located in or a national or resident of any country noted above that is subject to trade sanctions for the EU/EEA and Germany and to the extent applicable U.S. trade sanctions, or (b) on any prohibited party, sanction or similar lists for the EU/EEA and Germany and to the extent applicable U.S. Prohibited Party List, or acting on behalf of any person or entity on any such aforementioned lists. ETV’s performance of the services under this AGREEMENT is subject to the proviso that there are no obstacles to fulfillment due to national and international export and import regulations or any other legal provisions.
8.8 ETV is liable without limitation for (i) damages caused deliberately or due to gross negligence by ETV; (ii) damages arising out of death, injury to body or health; (iii) damages due to a neglect of duty by ETV concerning essential contractual rights and obligations, which are absolutely necessary for a proper execution of the contract, and which might endanger the fulfilment of the contractual purpose (material contractual obligations). In that case, however, liability shall be limited to typical and foreseeable damages; (iv) liability according to the German Product Liability Act; (v) liability in case of a guarantee (without hereby giving such guarantee). Any exemption from liability as well as limitations of liability of ETV shall also apply to the legal representatives and assistants of ETV. No further liability for ETV exists. In particular, ETV is not liable for a failure or delay in rendering services under this AGREEMENT to the extent caused by circumstances beyond its reasonable control. If DATA CONTRIBUTOR is an entrepreneur the DATA CONTRIBUTOR shall also be held responsible for all its legal representatives, assistants and any users according to Section 278 German Civil Code (Bürgerliches Gesetzbuch, BGB).
9. Collection, storage and usage of DATA
9.1 The DATA CONTRIBUTOR consents to the storage and evaluation of the DATA actively transmitted by him to ETV in the AGREEMENT and follow-up communications and of any SUBMISSION and of all (meta-)DATA transferred to ETV in the course of a SUBMISSION for purposes of verification, evaluation and categorization of DATA and SUBMISSIONs and for purposes of an optimized distribution of DATA submitted by him. ETV may store the DATA CONTRIBUTOR´s DATA in connection with archived DATA and transfer it to ETV LICENSEEs and other third-party licensees to the extent necessary for the agreed usage of the respective DATA by such licensees.
9.2 In the event personal data are processed by ETV on behalf of the DATA CONTRIBUTOR within the scope of this AGREEMENT, the data processing AGREEMENT provided by ETV (attached to the AGREEMENT as Annex) shall apply and the parties hereby enter into such data processing AGREEMENT. To the extent necessary and applicable under German or EU/EEA laws on privacy and data protection, the DATA CONTRIBUTOR hereby submits to and the parties agree on the EU Standard Contractual Clauses (available at: https://ec.europa.eu/info/law/law-topic/data-protection/international-dimension-data-protection/standard-contractual-clauses-scc_en). Beyond being entitled to store and process DATA CONTRIBUTOR’s personal DATA to the extent necessary for performing this AGREEMENT and ETV’s duties constituted by the AGREEMENT and/or by law, ETV shall have the right to store the DATA CONTRIBUTOR’s personal DATA in connection with archived DATA submitted by the DATA CONTRIBUTOR.
10. Wind-Down Period, survival of licensing rights and other provisions
10.1 Upon termination of the AGREEMENT ETV shall use commercially reasonable efforts to inactivate in its inventory all APPROVED DATA of the according DATA CONTRIBUTOR within 30 days of the termination (hereinafter: “WIND-DOWN PERIOD”).
10.2 ETV shall be free throughout the WIND-DOWN PERIOD to continue to process licenses of the DATA CONTRIBUTOR´s APPROVED DATA so long as ETV pays to the DATA CONTRIBUTOR the according LICENSE FEEs as set out in section 7 above.
10.3 Following the termination of the AGREEMENT, all unexpired licenses of APPROVED DATA will remain valid and in effect for as long as they were initially granted to the according ETV LICENSEEs and other third party licensees.
10.4 The termination of the AGREEMENT will not affect the accrued rights and obligations of the Parties existing at the date of termination. Sections 5. to 9. of these T&Cs will survive termination of the AGREEMENT, as will any matter arising under the AGREEMENT that either expressly or by its nature is required to be performed or applied after the Term of the AGREEMENT.
11. Final provisions
11.1 The place of performance for the obligations arising from the business relationship between ETV and the DATA CONTRIBUTOR is the place of the registered office of ETV.
11.2 Insofar as the DATA CONTRIBUTOR acts in the capacity of an entrepreneur in relation to ETV, i.e. by way of performing his commercial or self-employed professional activity, or if the DATA CONTRIBUTOR does not have a general place of jurisdiction in Germany, the court having jurisdiction at the place of ETV’s registered office shall be responsible for all disputes resulting from and in conjunction with the contractual relationship between ETV and the DATA CONTRIBUTOR.
11.3 The contractual relationship between ETV and the DATA CONTRIBUTOR and also any disputes arising in connection with the same shall be governed exclusively by the laws of the Federal Republic of Germany.
11.4 Should individual provisions of these T&Cs be legally ineffective, either in whole or in part, or subsequently lose their legal effectiveness, the validity of the remainder of these T&Cs shall not be affected thereby.
VERSION: June 2020