The Licensee, the Film- und Medienfestival gGmbH, Stephanstr. 33, D-70173 Stuttgart (hereinafter referred to as the “FMF”), is the organizer of the Stuttgart International Festival of Animated Film (hereinafter referred to as “ITFS”) which is partially held online and partially as an event with physical attendance. The FMF intends to make certain audio-visual works in the competition and supporting programs available to the general public on selected dates.
Beyond the scope of the actual Festival, the ITFS has adopted the whole-year task of promoting and acting as facilitator for this wide range of animated film in forms of cooperation to be agreed individually. Among other things, this includes the series of programs conceived by the FMF titled “ITFS Animation Special” in which a variety of film programs with animated films from the ITFS is offered and presented all over Germany.
The owner of the rights to the licensed audio-visual work (hereinafter referred to as “Licensor”) is interested in bringing both the work and its company to the attention of a wider audience, cinema operators and organizers, and would like to use the platform and popularity of the ITFS and of the other program series evolved by the FMF to this effect. The following General Terms and Conditions of License apply to the contractual agreement to grant the rights to the licensed audio-visual works (hereinafter referred to as “Production”).
1. Area of application
- The General Terms and Conditions of License apply to all contracts with our Licensors on granting rights of use to audio-visual works.
- Our General Terms and Conditions of License shall apply exclusively. Divergent, conflicting or supplementary general terms and conditions of business of our Licensors shall only become a component part of the contract if and insofar as we have explicitly consented to the application thereof. This consent requirement applies in every case, also, for instance, if the Licensor refers to its general terms and conditions of business or contract and we do not explicitly object to them.
- All statements that are relevant in law must be made in written or text form (letter, telefax, e-mail).
2. Conclusion of the contract
The Licensor shall receive an invitation from the FMF to participate in one or several scheduled presentation(s) with a specific Production. The invitation shall set out details of the venue and the time and of the number of presentations, the type of use, the Production, on delivering the material (e.g. format, data media), on possible remuneration and on other terms of the licensing (possible restrictions on access for users, inclusion of service providers). This invitation constitutes the FMF offer (hereinafter referred to as the “Offer”). The Licensor accepts the Offer by means of a confirmation by e-mail. The contract is concluded by virtue of the e-mail confirmation.
3. Supplying the material
The film material for the Production shall be delivered by the Licensor on the agreed date, at the agreed destination, in the agreed format and the agreed quality. Agreed delivery dates are binding.
4. Rights of use
The Licensor grants to the FMF the simple rights of use indicated in the Offer and confirmed by the Licensor with the scope stated in the Offer and for the purposes named therein. The individual rights of use are described below:
4.1 Theatre right (cinema presentation rights), i.e., the right to make the Production perceivable by the public by the use of technical devices, whatever the technical form the presentation system and the audio/visual media have. The theatre rights relate, in particular, to all film formats and sub-standard film formats (e.g., 70, 35, 16, 8 mm) and to electromagnetic and digital systems (e.g., DVD, BlueRay, video file formats such as MOV and Mp4 and DCP (SMPTE/DCI)) and encompass both commercial and non-commercial film presentation.
4.2 Open-air-presentation right, i.e., the right to present the Production by using technical equipment at open-air-events and to make it perceivable by the public, whatever the technical form the presentation system and the audio/visual media have. The open-air presentation right relates to all film formats and to electromagnetic and digital systems, in particular to DVD, BlueRay and video file formats such as MOV and Mp4 and encompasses both commercial and non-commercial film presentation.
4.3 Right to access and retrieve online (video on demand (VOD) right), i.e., the right to make the Production available to a large number of users by the use of digital or other storage and transmission technology in return for payment or free of charge, so that the users can receive the Production on individual demand on a smartphone, tablet, PC, TV and/or other device. The Production shall solely be made available by streaming with restricted access, via a website of the itfs, FMF or of the cooperation partner notified to the Licensor, i.e., there will only be, at most, brief intermediate storage on the user’s storage media, but no storage of the entire Production. The entire Production is not downloaded in connection with the streaming. The right to process the Production to the extent technically necessary for these purposes is included.
4.4 The right to broadcast by live streaming, i.e., the right to make the Production available to the general public in whole or in part, free of charge, in encrypted or unencrypted form, by means of digital transmission technology by live streaming in such a way as to enable all the users to retrieve the Production at the same time and in parallel. This applies regardless of the transmission path, e.g. narrow or broad band transmission methods (telephone network, ISDN, DSL, radio, powerline (electricity lines)), other data lines and/or networks, including the Internet and all mobile TV technologies (such as 3G/UMTS and T-DMB) in all technical processes (e.g. digital, high definition, linear and interactive) and whatever the receiver device used (e.g. TV, PC, PDA, smartphone, tablet, play station, UMTS, WAP, GPRS mobile phone). The Production shall solely be made available by means of live streaming with no restriction on access, via a website of the itfs, FMF or of the cooperation partner notified to the Licensor, i.e., there will only be, at most, brief intermediate storage on the user’s storage media, but no storage of the entire Production. The entire Production is not downloaded in connection with the streaming. The right to process the Production to the extent technically necessary for these purposes is included.
If it should be necessary for the contractual use, the FMF has the right to also permit third parties to use or exercise the rights of use in compliance with the contract (e.g., cinema operators, streaming platform etc.).
In addition to the specific use agreed in accordance with sections 4.1 to 4.5, the following rights of use are also always granted:
4.6 Reproduction right, i.e., the right of the FMF to reproduce the Production also on audio/visual media other than those originally used, if this should be absolutely necessary for the purpose of the contractually agreed use; the Licensor shall be informed of this. After termination of the contract, all the existing copies shall be returned to the Licensor or deleted.
4.7 Advertising right, i.e., the right to advertise the Production and the ITFS in a manner customary in the industry (e.g., in online media, in the cinema, via communications networks, in particular on the Internet and in print). If the FMF and/or a cooperation partner should require trailers of, visual material or excerpts from the Production for this purpose and requests these separately, the grant of the rights of use also covers such material. The right to manufacture, reproduce and disseminate content presentations and other short print works of the Production and other promotional literature to the customary extent, is included therein. This right also encompasses the authorization to use images, names and biographies of the persons collaborating in the Production and other Production elements such as titles, marks, protected business designations;
5. Guaranties and duties of the Licensor
5.1. The Licensor declares and guarantees that it holds all the copyrights, rights related to copyright and other rights required to grant the usages specifically necessary and confirmed separately, and that it has the right to dispose thereof to this extent.
5.2 The Licensor guarantees that neither personal rights nor other third-party rights are infringed through the exploitation of the contractual rights to the Production by the FMF and that the Production does not contain any unlawful content.
5.3 The Licensor is obliged to support the FMF fully and without limitation in defending the rights. In particular, the Licensor is obliged, at the FMF’s request, to evidence the acquisition of the rights required for the specific and separately confirmed use by submitting the original documents (Chain of Title).
5.4 The Licensor shall indemnify and hold the FMF harmless from all claims asserted by third parties against the FMF in and out of court, based on the agreed use of the Production, and compensate the FMF for all the damage and/or costs (including reasonable costs of pursuing and defending rights) provided that the use by the FMF and the cooperation partner is in compliance with the agreement and that the claims result from the Licensor not complying with the contractually-agreed obligations
5.5 The Licensor assures that the material for the Production to be delivered in accordance with the agreement has the characteristics and technical quality described in the invitation and can be implemented for the use agreed therein.
6. Defence of rights
6.1 In the event of an infringement of the confirmed rights, the FMF has the right, after prior coordination with the Licensor, to take suitable measures to avert such infringements. The Licensor shall support the FMF fully in the defence of rights.
6.2 In cases where the agreed rights are infringed by a third party, the Licensor is obliged to take all suitable measures to follow-up such infringements and to inform the FMF thereof immediately after gaining knowledge of such infringements. Notwithstanding this, the FMF has the right to take suitable action itself to follow-up the rights infringements in such cases.
7.1 The Licensor shall notify the FMF of the obligations that exist to identify names in the credits and shall provide the FMF in good time with all the information required to comply with such naming obligations.
7.2 The FMF undertakes to comply with the naming obligations notified by the Licensor and to also impose this naming obligation on cooperation partners.
8. Breach of contract
8.1 In the event of a breach of contract, a warning notice in writing shall be sent to the other respective contract Party setting a time limit of at least 14 days to cure the breach. Setting an additional period of time can be dispensed with subject to the conditions defined by statute (sec. 314 (2) sentences 2 and 3 German Civil Code (BGB)).
8.2 If the breach of contract is not cured within the time period set, both contract Parties have the right to terminate the contract for cause [ausserordentliche Kündigung].
8.3 Notice of termination must be given in written form.
8.4 Additional contractual and statutory claims remain reserved.
9. Final provisions
- Changes and supplements to this contract must be made in written form or text form in order to become legally effective.
- The laws of the Federal Republic of Germany shall apply, excluding the UN Convention on Contracts for the International Sale of Goods.
- The place of performance is Stuttgart and the courts of Stuttgart shall have exclusive jurisdiction in the event that the Licensor is a businessman, a public law legal entity or a public law special fund. This shall also apply if the Licensor is an entrepreneur pursuant to sec. 14 BGB.
Version of: October 2022