General Terms of Use for End Customers („Media Library Terms of Use“)
1. Subject Matter of the contract
DEEPWAVE e.V, represented by Heye Groß, Sodenkamp 13e, 22337 Hamburg, Germany (hereinafter referred to as „Provider”), organizes the „DEEPWAVE e.V ICRS Online Filmfestival“ (hereinafter referred to as „Festival“). The Provider offers end customers a video on demand service (hereinafter referred to as “VoD Service”), within the scope of which the use of selected films and other audiovisual content (hereinafter referred to as “Content”) is enabled by way of video on demand free of charge. In return, the end customer provides his e-mail address. The VoD service is available on the provider’s website as an embedded player (“Embed Player“). The contractual partner of the end customer is the Provider. The processing is carried out by PANTAFLIX Technologies GmbH (“PANTAFLIX”), Neue Schönhauser Straße 16, 10178 Berlin, Amtsgericht Charlottenburg, HRB 172999 B, in the name and for the account of the Provider.
2. Definitions
“Video on Demand” or “VoD” refers to the exploitation of content by way of making it available to the public within the meaning of Section 19a of the German Copyright Act, i.e., the right to make the production available to members of the public by way of on-demand.
“Streaming” means the simultaneous use of the Content by the End User, unmodified with the Transmission, without creating a permanent copy of the Content on the End User’s terminal equipment.
“Consumer” means any natural person who enters into a legal transaction for purposes that are predominantly neither commercial nor self-employed (§ 13 BGB).
“End Customers” for the purposes of these Terms of Use are consumers with full legal capacity, who have purchased a festival pass free of charge.
„Festival Pass“ is the entitlement to have access to the available films as often as desired during the period of use granted.
3. Scope of the Terms of Use
These Terms of Use apply to all services offered by the Provider within the scope of the VoD service and services provided to end customers. Deviating or supplementary terms and conditions of the end customer shall not apply unless they have been accepted by the supplier in writing.
4. Conclusion of Contract
a) For the conclusion of a contract on the use of the content provided within the scope of the VoD service between the provider and an end customer (hereinafter referred to as “usage contract”), the complete and correct entry of the requested data via the input mask provided by the provider for this purpose is required. By clicking the button “Order for 0€”, the end customer’s order is transmitted to the provider. The contract of use is then concluded by the activation of the respective content by the provider. The activation and conclusion of the usage contract will be confirmed to the end customer by e-mail. There is no entitlement to use the VOD service.
b) The End Customer’s offers to conclude a User Agreement shall be binding on the End Customer. The Provider shall not be obliged to accept the offer of an End Customer to conclude a Framework Agreement or a User Agreement.
c) The respective service descriptions including the price details are listed in the respective offer and are part of the respective contract of use.
d) The data of the end customer and the text of the contract provided in connection with the conclusion of a contract of use shall not be stored. The text of the contract shall be sent to the end customer by e-mail after the conclusion of the contract of use.
e) The end customer can continuously correct his entries via the keyboard and mouse functions within the framework of the conclusion of the user contract. In addition, when entering his data, the end customer is provided with technical means with which a customary completeness and plausibility check is carried out and with the help of which input errors can be detected and corrected).
5. Scope of Services, contract period, Ticket purchase, granting of rights
a) Once a usage contract has been concluded, the provider shall make the respective content available to the end customer for retrieval via the Festival Pass in accordance with the following provisions. The end customer can see from the respective service description of a content under which conditions the content is offered. The end customer receives a so-called ticket ID with which he/she can access the content or the contents.
b) The end customer may play the content for the purpose of immediate perception via the VOD service, i.e. – with the exception of so-called buffering – without intermediate storage by way of streaming on an end device of the respective end customer as often as desired during the period of use.
c) The end customer has no right to a specific content, unless a specific content was expressly promised to him in the service description. The provider reserves the right to change the content and the respective price and service description (e.g. by updating and changing the content) if this is required by valid reasons, the customer is not objectively placed in a significantly worse position by the change and the change is reasonable for the customer.
d) The End Customer is granted only the non-exclusive, non-transferable, non-sublicensable right, limited in time to the online availability of the Content, to make the Content perceptible for private purposes by way of streaming. The end customer is not granted any further rights of use. In particular, the end customer is not entitled to permanently store the content in whole or in part, to reproduce it beyond the aforementioned scope, to modify it, to make it publicly accessible, to sell it or to use it for commercial purposes.
6. System requirement of the end customer
The end customer may use the presented services of the VoD service on up to three (3) registered end devices. One stream per end customer is available at the same time.
7. Obligations of the End Customer
a) The End Customer warrants that all information provided to the Provider is always truthful.
b) If the End Customer does not provide the information required and requested by the Provider to determine the Member State of residence pursuant to the Regulation on cross-border portability of online content services in the internal market, or does not provide such information completely or truthfully, or if the End Customer fails to cooperate in any other way required in this context, with the result that the Provider is unable to determine the Member State of residence of the End Customer, the End Customer shall not be entitled to use the content on a cross-border basis within the meaning of the aforementioned Regulation. For the avoidance of doubt, this shall not affect any rights granted to the end customer on the basis of the concluded usage agreements to use the content in countries other than his Member State of residence.
c) The end customer may not misuse the VoD service; in particular,
aa) he may not not rent, resell or otherwise offer the services of the Provider to third parties on a business basis;
bb) pass on the Ticket ID received to third parties or make it available in any other way;
cc) not tamper with the digital key transmitted to decrypt and play the content;
dd) do not circumvent the territorial limitation of use (especially by geo-blocking) of the provided content (e.g. circumvention by means of VPN client or tunnel);
ee) do not change copyright and proprietary notices;
ff) use the retrieved content only in compliance with applicable laws and within the scope of the rights granted under the respective User Agreement and these Terms of Use, i.e. in particular not (i) use the content for commercial purposes, (ii) present it to the public, (iii) make it available to the public, (iv) broadcast it, (v) edit it, (vi) reproduce it (beyond the permitted extent), (vii) distribute it, (viii) sell it;
gg) Only present, allow to be presented or otherwise make available to children or young people content that is approved for the respective age group.
d) In the event of culpable violations by the End Customer arising from the contractual relationship between the Provider and the End Customer, the End Customer shall be liable to the Provider for all damages, costs and other expenses and shall indemnify the Provider against any claims and third party claims arising as a result thereof.
8. Restricitons on the obligation to perform
a) In the event of a significant breach of duty by the End Customer as well as in the event of justified substantial suspicion of a significant breach of duty, the Provider shall be entitled to withhold the respective service or the availability of the functionality to which the breach relates within the scope of the statutory provisions. In the aforementioned cases, as well as in particular in the event of suspicion of untrue or false information by the end customer, in the event of unauthorized disclosure of access data or in the event of default of payment, the provider is furthermore entitled to temporarily block access to the service by the end customer.
b) The Provider shall immediately resume the service or lift the block if it becomes apparent that the suspicions were unfounded and/or a significant breach of duty by the Customer does not exist or no longer exists. In doing so, the Provider shall ensure that the Customer can use the agreed service in accordance with the agreement in the usage contract. The right of the Provider to terminate for cause remains unaffected.
9. Technical availability
The Provider shall endeavor to ensure the permanent and continuous availability as well as the error-free functionality of the VoD service during the term of the contract. The Provider may restrict the accessibility and operation of the VoD service for technical reasons, provided that the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disruptions of the network, the software or stored data, the interoperability of the services or data protection require this. The Provider shall carry out maintenance work on the VoD Service, if necessary, with such maintenance work taking place at times of low usage. If maintenance work is planned, the Provider shall inform about it and announce it by means of suitable measures.
10. Protection of Minors
a) The VoD service is aimed at legally competent persons aged 18 and over.
b) The Provider reserves the right to offer developmentally impairing offers with time restrictions, to open the VoD service for other youth protection programs, or to restrict their access by means of an AVS or a youth protection PIN.
11. Liability
a) The Provider shall be liable without limitation for all contractual, quasi-contractual and statutory claims, including claims in tort, for damages and reimbursement of expenses for any legal reason:
aa) in the event of intent or gross negligence,
bb) in the event of intentional or negligent injury to life, limb or health,
cc) on the basis of a warranty promise, unless otherwise regulated in this respect,
dd) on the basis of mandatory liability, such as under the Product Liability Act.
b) If the Provider negligently breaches a material contractual obligation, liability shall be limited to the foreseeable damage typical for the contract, unless liability is unlimited pursuant to the above provisions. Material contractual obligations are obligations which the contract imposes on the Provider according to its content in order to achieve the purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and compliance with which the Rights Holder may regularly rely on.
c) In all other respects, liability on the part of the Provider is excluded.
d) The above liability provisions shall also apply with regard to the liability of the Provider for its vicarious agents and the personal liability of its legal representatives and employees.
12. Right of determination for good cause
The right of termination for good cause remains unaffected. For the Provider, good cause shall be deemed to exist in particular if the End Customer violates Clause 7 c) or Clause 7 d) of these Terms of Use or if the End Customer violates provisions of these Terms of Use, rights of third parties or statutory provisions and does not remedy its violations despite a warning with a deadline set by the Provider.
13. Modifications of the Terms of Use
a) The Provider is entitled to change less important provisions of these Terms of Use at any time and without stating reasons, provided that this does not lead to a reorganization of the overall structure of the contractual relationship. The weighty provisions include in particular the provisions by which the type and scope of the contractually agreed services, the term and the termination are determined.
b) The Provider shall also be entitled to amend provisions of these Terms of Use insofar as this is necessary to eliminate difficulties in the performance of the contractual relationship due to regulatory gaps that have arisen after the conclusion of the contract. This may be necessary in particular in the event of new technical developments, changes in the law, changes in case law or similar valid reasons.
c) The End Customer shall be notified of the changes to the Terms of Use . If the End Customer does not object to the validity of the new Terms of Use within two days after receipt of the e-mail, the amended Terms of Use shall be deemed accepted. The Provider shall separately inform the end customer in the e-mail about the possibility of objection and its consequences as well as the significance of the deadline. If the end customer objects to the change in the terms of use, the provider reserves the right to terminate the contract with the end customer.
14. Final Provision
a) The law of the Federal Republic of Germany shall apply to all legal relationships between the parties. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. In the case of consumers, this choice of law shall only apply to the extent that the protection granted is not withdrawn by mandatory provisions of the law of the country in which the consumer has his habitual residence.
b) The place of performance shall be Hamburg. For commercial customers, the place of jurisdiction shall be Hamburg. In the case of cross-border contracts, the exclusive place of jurisdiction shall be Hamburg, Federal Republic of Germany (Art.17 EuGVVO).
c) Amendments to a contract of use must be made in writing. There shall be no oral or written collateral agreements. Section § 126 Abs. III BGB shall apply.
d) Should individual provisions of these Terms of Use be or become void or ineffective in whole or in part, this shall not affect the validity of the remaining provisions.
