General Terms and Conditions for Copyright Holders’ Use of the PANTAFLIX Platform
Section 1 Person Responsible
PANTAFLIX GmbH, represented by its Managing Director, Dan Maag, Neue Schönhauser Str. 16, 10178 Berlin (hereinafter referred to as PANTAFLIX).
Section 2 Subject Matter of the Agreement and Definitions
PANTAFLIX offers users under www.pantaflix.com a video on demand service (hereinafter referred to as VOD service). PANTAFLIX is directed at copyright holders (hereinafter referred to as “copyright holders”) who wish to make films, series and other audiovisual content (hereinafter referred to as “production”) available to customers for streaming in selected countries/territories. To this end PANTAFLIX provides its VOD service via which the copyright holder can market its product. PANTAFLIX makes the content of the copyright holder available to its customers in coded and encrypted form for streaming and/or download to rent. PANTAFLIX is offered and exploited on the website www.pantaflix.com and, via embedded codes, also on the websites of third parties.
- “Streaming” in the meaning of these general terms and conditions is to be understood as the customer’s use, in unchanged form and simultaneously with transmission, whereby no permanent copy is created on the customer’s terminal.
- “Download to rent” is the temporary (interim) storage of data for use, subsequent to or simultaneous with the transmission, on the customer’s computer or other terminals certified by PANTAFLIX.
- “Consumer” is any natural person who concludes a legal transaction for purposes that cannot be predominantly attributed to his/her commercial or self-employed professional activity.
- “Entrepreneur” is a natural or legal person or a partnership with legal capacity that in concluding a legal transaction acts in the exercise of its commercial or self-employed professional activity.
- “Customer/user” in the meaning of these general terms and conditions is both a consumer and an entrepreneur.
Section 3 Scope
These general terms and conditions apply to all services offered and performed by PANTAFLIX for copyright holders who post contents via PANTAFLIX’s VOD service, administer these contents and make them available to customers. Between PANTAFLIX and the copyright holder, these general terms and conditions shall apply exclusively. Other general terms and conditions shall not apply, including in cases where the customer transmits them to PANTAFLIX or makes reference to them in communications with PANTAFLIX or elsewhere and where PANTAFLIX has not objected to them. Other general terms and conditions shall thus apply only if recognised in writing by PANTAFLIX.
Section 4 Registration/Conclusion of the Agreement on www.pantaflix.com
- The services offered by PANTAFLIX under www.pantaflix.com do not represent for the copyright holder binding offers on conclusion of a contract. Rather, they represent an invitation to the copyright holder to submit an offer.
- To use the VOD service, registration by the copyright holder under www.pantaflix.com is required before conclusion of an agreement on making the production publicly available. The copyright owner will receive an email through which it must verify its email address.
- For registration the copyright holder must do the following:
a. provide accurate information on the legal person of the copyright holder (name, address, legal status and value added tax identification number (VAT ID no). The registration of a legal person or partnership may only be made by a natural person with power of representation who must be named.
b. where applicable, upload certificate on exemption from withholding tax where applicable;
c. provide accurate information on the production (genre, content, age rating, IMDb URL).
d. upload all productions to www.pantaflix.com;
e. concede to PANTAFLIX the rights named in section 6 and the legal guarantees named in section 7 for the stated countries/territories for making the respective production publicly available;
f. determine the price to the final customer of each accessing of the production pursuant to section 11.
4. On conclusion of registration the copyright holder can submit for each production it deposits a binding offer for the conclusion of a user agreement with PANTAFLIX on the marketing of the production and making it publicly available. The binding offer on making publicly available/activation occurs by means of the “submit” button on www.pantaflix.com. PANTAFLIX will review the copyright holder’s information and the respective production. Acceptance of the agreement by PANTAFLIX occurs only when the production in question becomes available for accessing by customers under www.pantaflix.com through PANTAFLIX’s making it publicly available/activation. The copyright holder will be informed of conclusion of the agreement by email.
5. An account is not transferrable.
Section 5 Administration by the Copyright Holder
- The copyright holder can administer its productions under www.pantaflix.com after conclusion of the agreement.
- Copyright holder can effect a pause in the public availability of any production. The production will then be accessible to customers at PANTAFLIX for a further 30 days and 48 hours but will no longer be bookable. Pausing is effected by clicking the “pause” button.
- Copyright holder may in accordance with section 11 of these general terms and conditions adjust the prices it has selected.
- Renewed public availability of the production occurs by renewed clicking of the “submit” button by the copyright owner.
Section 6 Granting of Rights by Copyright Holder
- Copyright holder is the proprietor of those rights in the production it makes available that are necessary for the fulfilment of this agreement. PANTAFLIX acquires rights in the production in accordance with this agreement.
- Copyright holder assigns to PANTAFLIX on registration without time limit the simple, non-exclusive right, limited or limitable in geographical scope, to exploit and/or cause to be exploited and/or make publicly available and/or cause to make publicly available the production in the named countries/territories on the internet via the VOD service at www.pantaflix.com and/or by integrating the PANTAFLIX video player on third party web pages (so-called embedded codes). Specifically, copyright holder transfers, subject to termination, the following rights in the production:
a. Transactional Video on Demand (TVOD) (Right of Making Works Available to the Public)
The right to TVOD as the right of making works available to the public (section 19a UrhG [Gesetz über Urheberrecht, Copyright Act]). Through the right of making works available to the public it shall be possible for PANTAFLIX to allow its customers to access and play the production at any time, if necessary with a geographical limitation by means of geoblocking. In this regard the production can be accessed either by means of streaming or through the option of temporary storage (download to rent).
b. The Right to Advertise
The right to advertise and to exploit clips, i.e. in particular the authority to use excerpts from the production for the purposes of advertising both the production and PANTAFLIX and its licensees, also via cross promotion (including e.g. tie-in advertising). Included is the right to advertise the production and its exploitation for VOD service in the manner customary within the branch (e.g. on TV, radio, in cinemas, on video programmes, on mobile terminals, on the internet or in printed matter), including using the name, voice and image of the author, the director or the actors and the right to reproduce, distribute and otherwise use the characters, images, representations and other elements of the production for the above-named advertising purposes.
c. The Right to Use Titles
The right to use the title of the production in the framework of exploiting and advertising the production in accordance with sections 6.2 a) and b) above.
d. Trademark Rights
The right to use all proprietary trademarks and other distinctive signs relating to the production (section 1 MarkenG [Markengesetz, Trademark Act]) for the purposes of this agreement; this includes in particular the use of all registered trademarks with respect to the production and trademarks whose registration is pending in all registered classes.
PANTAFLIX herewith accepts these transfers of rights.
3. All contractual assignments or granting of rights shall, to the extent that the rights have already arisen or been acquired, take effect with acknowledgment of these general terms and conditions on registration and otherwise at the time they arise or are acquired.
4. PANTAFLIX accepts this assignment or grant in accordance with the above-named conditions immediately.
5. PANTAFLIX will endeavour to ensure the best possible exploitation but is not, however, under an obligation to use all the forms of exploitation and/or usage rights herewith assigned.
Section 7 Guarantee of Rights [by] Copyright Holder
Copyright holder guarantees by way of an independent warranty undertaking that it is hindered neither on factual nor legal grounds from concluding this agreement, providing services under this agreement or fulfilling this agreement and in particular from fully effecting the assignment of rights. Copyright holder guarantees by way of an independent warranty
- that it has unlimited power of disposal over the rights assigned in this agreement, in particular, that it has acquired the rights of all authors, performance right owners or other entitled persons that are necessary for exploitation of the production by PANTAFLIX in accordance with the agreement and that no agreements have been made with third parties that run counter to the promised exploitation of the usage rights assigned to PANTAFLIX.
- that the production in the named countries/territories is free of any rights of third parties, that is in particular that authors’ and performance rights, privacy rights and any other rights of third parties will not impair exploitation of the production by PANTAFLIX. It is further guaranteed that all the material made available - unless otherwise specified in this agreement - in particular but not limited to the advertising material is free of any rights of third parties and may be used freely by copyright holder for the exploitation of the assigned usage rights, in particular for advertising for the production, and passed on to third parties for the purpose of advertising the production.
- that it has obtained all licences and consents necessary for the VOD exploitation of the assigned usage rights and has paid all necessary fees and sums.
- that it (including its owners, employees, managers, senior executives and other staff and ancillaries) has abided by all relevant laws, ordinances, directives and collective labour agreements (where applicable) in connection with the production and this agreement, and that it will continue to abide by them during the licensing period.
Section 8 Exemption
Copyright holder shall indemnify PANTAFLIX from all claims of third parties regarding the production it makes available.
Section 9 Obligations [of] Copyright Holder
- Copyright holder undertakes to state the information necessary for registration fully and correctly and to report changes without delay. This applies in particular to information on the address, the bank account and the email address and the truthful statements on the content, genre and age rating of the production.
- Copyright holder undertakes not to publish and/or permit to be published any contents that could infringe the rights of third parties or otherwise violate existing law. The mere depositing of content that is pornographic, extreme left-wing or extreme right-wing or offends public morals without notifying PANTAFLIX hereof in writing is impermissible. PANTAFLIX is entitled to block copyright holder’s access to the VOD service in case of violation of this provision. The same applies if copyright holder deposits contents without notifying PANTAFLIX that are capable of offending the honour of third parties, or of insulting or denigrating any individuals or groups. This shall also apply even though a concrete legal claim may not exist. Violation of this obligation to notify shall also entitle PANTAFLIX to terminate the contract immediately for exceptional reasons.
- Copyright holder undertakes to change assigned passwords without delay. It is responsible for selecting and using secure passwords. Copyright holder manages its passwords and other access data with care and keeps them confidential. It shall be obliges to pay also for any services used or ordered by third parties by means of its access data and passwords to the extent that it is answerable for same.
- The use of the VOD service to disseminate malware or illegally-operating botnets, to send spam messages or for phishing, for infringements of trademark and copyright law and/or piracy, for fraudulent or misleading practices, for counterfeiting or other forms of behaviour that violate applicable law, is prohibited.
Section 10 PANTAFLIX
- PANTAFLIX guarantees a yearly average accessibility of the VOD service of 99%. Excluded herefrom are periods during which the VOD service is not and/or is only partially accessible via internet due to technical or other problems beyond the control of PANTAFLIX and due to maintenance work of a reasonable extent.
- PANTAFLIX may limit access and accessibility to the extent that this is necessary for the security of the network operation, for maintaining network integrity, in particular avoiding serious disruptions to the network, the software or secured data, for the interoperability of the services or for data protection.
- PANTAFLIX shall owe solely the transmission of data. Should data losses occur after completion of transmission or the download process, neither the customer nor the copyright holder shall have any claims against PANTAFLIX so far as PANTAFLIX is not responsible for the data loss.
- PANTAFLIX guarantees upload of the production via a state-of-the-art secure connection for data transfer through encryption with SSH/AES. After successful upload and simultaneously occurring data segmentation and encryption copyright holder shall receive confirmation hereof.
- On conclusion of a user agreement the customer shall be granted for a limited period a user right to view the production on terminals (internet-enabled TV, computer and other devices) by way of streaming and/or to save it for a limited period of time for subsequent replay by way of download-to-rent.
- In the case of individual access by way of streaming the customer may after conclusion of the contract begin playback within a period of 30 days. From the first playback the customer may access the content from the server without storage (apart from possible temporary intermediate storage in the cache) for playback as often as desired within a period of 48 hours and view it on a terminal provided that the first playback has occurred within the 30-day limit. On expiry of the stated time limits the customer must conclude a new user agreement.
- In the case of individual access by way of download to rent the customer may, following conclusion of the contract, begin the downloading process within a period of 30 days following conclusion of the contract. After the first downloading procedure the customer may view the content as often as desired within 48 hours provided that the first downloading procedure occurs within the 30-day limit. On expiry of one of the stated time limits the customer must conclude a new user agreement.
- Compliance with the geographical limitation on the use of the production by PANTAFLIX set by copyright holder and for which it is responsible will be ensured in the sphere of technical possibilities by geoblocking in accordance with legal guidelines.
- All productions will be encrypted with a digital rights management system (DRM) to ensure the most secure access-controlled and user-controlled distribution possible of the digital contents.
Section 11 Pricing
Copyright holder may choose the final price to be paid in the respective national currency by the customer for each use of the VOD service in copyright holder’s account at www.pantaflix.com according to predefined categories and gradations of final price (e.g. from € 0.99 to € 19.99) and may alter these at any time. The final price is the price to be paid by the customer for access inclusive of any statutory value added tax due but excluding any possible transaction costs of external payment services. The customer will then be offered the production at the price set by the copyright holder in each case. As a service PANTAFLIX offers the copyright holder with no obligation an alternative price calculation and/or pricing strategy.
Section 12 Remuneration Copyright Holder, Evaluation
- Copyright holder receives as remuneration a share of 75% of the net proceeds of each access.
- The net proceeds result from the gross proceeds of each access less statutory value added tax where due. The gross proceeds is the sum actually collected from the customer by PANTAFLIX at the euro exchange rate of the day, paid by the customer as the final price (including value added tax where applicable) for each access.
- Remuneration is due, unless otherwise agreed in writing, at a credit balance of not less than € 50.00 at the end of the following month for the respective paid accessing processes regarding all productions of the copyright holder, no later than after 6 months and on the following conditions:
a. Remuneration to copyright holder occurs within the EU as a “credit” if copyright holder has notified its VAT ID number. The VAT charges are then borne by PANTAFLIX (so-called “reverse charge procedure”). The credit will be transferred to the bank account named by the copyright holder. If no VAT ID number is available remuneration shall occur following receipt of a valid invoice.
b. Remuneration to copyright holder outside the EU shall be following receipt of a valid invoice.
- The copyright holder will receive a document on the credit in the form of a PDF file sent to the email address he has provided. Copyright holder is aware and agrees that the transmission of these data via email will not be encrypted.
- Remuneration shall be in euro at the exchange rate set by the payment institution at the time the order for reimbursement is made.
- Any transaction costs due for the transfer of the remuneration shall be borne by the copyright holder.
- Payment of remuneration will be reduced by any legally-required withholding tax payment.
- Copyright holder will at all times be shown in its account at www.pantaflix.com the number of accessing processes and sales attained. Additionally it shall receive a monthly evaluation of the gross and net sales of its production via email to the email address given and authorised by it on registration. Copyright holder is aware and agrees that the transmission of these data via email will not be encrypted.
- With the remuneration agreed in section 12.1 all services of the copyright holder and the assignment of rights are fully compensated. Copyright holder acknowledges that the remuneration agreed here includes an appropriate, comprehensive and final share in the proceeds of exploitation of the production and that no further claims exist against PANTAFLIX or third parties deriving their rights from PANTAFLIX either now or in future.
- Copyright holder undertakes permanently to monitor and to keep up-to-date the data (in particular bank, tax and address data) in its account at www.pantaflix.com. Any change in its data is to be notified to PANTAFLIX forthwith in writing and/or to be changed in the account.
Section 13 Liability
PANTAFLIX shall be fully liable for all contractual and quasi-contractual and statutory claims including tort claims for damages and reimbursement of expenses on any legal ground with regard to the following:
- in case of wilful intent or gross negligence,
- in case of loss of life, bodily injury or damage to health through wilful intent or negligence,
- on account of a guarantee commitment unless provided otherwise,
- on account of compulsory liability such as pursuant to the Produkthaftungsgesetz [Product Liability Act].
Should PANTAFLIX negligently breach a fundamental contractual obligation, liability shall be limited to the damage which is typical for the contract and predictable unless liability is unlimited pursuant to the clause above. Fundamental contractual obligations are obligations the agreement imposes on PANTAFLIX with regard to its content in order to achieve the purpose of the contract, whose fulfilment is a prerequisite for enabling the due and proper performance of the contract and on compliance with which the copyright holder may ordinarily rely.
Otherwise any liability on the part of PANTAFLIX is excluded. The above-specified liability provisions also apply with regard to PANTAFLIX’s liability for its vicarious agents and legal representatives.
Section 14 Termination
1. By Copyright Holder
a. Unless expressly agreed otherwise, copyright holder shall be entitled to terminate the use agreement with PANTAFLIX at any time. Termination may only be in the personal customer area following login at www.pantaflix.com or in writing.
b. After effective termination by the copyright holder the production will still be available in the VOD service for accessing by customers for a further 30 days and 48 hours but will no longer be bookable. It must be ensured that PANTAFLIX can meet all its obligations to customers that arose before termination.
2. By PANTAFLIX
a. Unless expressly agreed otherwise PANTAFLIX shall be entitled to terminate the use agreement with copyright holder at any time, effective with 14 days notice to the end of the month. This shall not affect the right to block access. Termination must be in writing.
b. As soon as copyright holder is blocked or notice of termination of the use agreement is given by PANTAFLIX, this user may no longer use the VOD service nor register anew. Blocking or notice of termination shall not affect the validity of agreements already concluded between PANTAFLIX and customers.
Section 15 Assignment of Rights to Third Parties
In order to fulfil the agreement and performance of the VOD service, PANTAFLIX may make use of other companies and assign to them in whole or in part the rights assigned to PANTAFLIX in this contractual relationship, in particular pursuant to section 6 of these general terms and conditions.
Section 16 Final Provisions/Applicable Law/Place of Jurisdiction/Subsidiary Agreements
- In all legal relations of the parties the law of the Federal Republic of Germany shall apply. Neither the UN Convention on Contracts for the International Sale of Goods (CISG) nor any other international agreement shall be applicable, even if incorporated into German law. For consumers this choice of law is applicable only insofar as mandatory provisions of the country where the customer is usually domiciled do not deprive the customer of this protection.
- This agreement shall be governed by German law. Place of performance and jurisdiction of the agreement shall be the place of business of PANTAFLIX.
- The contract language shall be English except in contracts with copyright holders who have their headquarters and/or branches in Germany and/or Austria. In this case, the contract language shall be German.
- The contracting parties hereby agree that their business relationship shall be conducted in writing; email and information provided via contact forms on www.pantaflix.com shall be treated as equivalent to writing. No subsidiary oral agreements have been made. Amendments and supplements to this agreement shall also be made strictly in writing.
- PANTAFLIX reserves the right to amend these general terms and conditions at any time without giving reasons. The amended conditions will be sent by email to copyright holders no later than four weeks before entering into force. If the copyright holder does not contest the validity of the new general terms and conditions within four weeks of receiving the email, the amended general terms and conditions shall be deemed accepted. In the email PANTAFLIX will specifically inform the user of the possibility of contestation and the significance of the four week time limit.
- If any provision contained in this Agreement should prove to be invalid, the validity of the remainder of this Agreement shall not be affected. Invalid provisions are to be replaced by substitute provisions which most closely reflect the lawful economic intentions held by the Parties. The same shall apply with respect to the filling of any gaps which may arise in the coverage of this Agreement.