General Terms and Conditions of Studio71 GmbH in the area of special marketing

Deutsche Version

(Rev. February 1, 2018)

General section: Terms and conditions for all services

A.1. Parties

A.1.1. Studio71 GmbH (referred to hereinafter as “S71”) is the multichannel network of ProSiebenSat.1 Media SE and markets the productions of the Web video and/or social-media artists under contract with S71 (also called “Creators”) who distribute their work through their own channels on diverse online platforms (e.g., YouTube, Instagram, etc.) (“Vendors”), and supports the Vendors in designing, producing, and distributing their content through various measures.

A.1.2. Among other things, S71 acquires, designs, and produces projects in the areas of ad video, Product Placement, branded entertainment, social media marketing, testimonial, sponsoring, Outfitting, performance and affiliate marketing, all intended for distribution through Internet platforms, here specifically on video or social media platforms (referred to hereinafter as “Special Marketing Projects”).

A.1.3. The counterparty for Special Marketing Projects of S71 may be an agency or an advertiser directly (referred to hereinafter as “Business”). Wherever a “counterparty” or “client” is mentioned below, the rule refers both to an agency and a Business.

A.2. Applicability

A.2.1. These General Terms and Conditions govern the contractual relations between S71 and its counterparties with respect to the booking of ad integration and the implementation of Special Marketing Projects.

A.2.2. Unless otherwise agreed in writing, the Special Marketing Project is based exclusively on the General Terms and Conditions of S71. General Terms and Conditions of the counterparty are expressly precluded hereby. This applies even if no express objection was raised to the counterparty’s terms and conditions and/or if S71 performs its services without objection.

A.2.3. Special provisions must be observed depending on the advertising form. Should provisions of the general section and the special section of these General Terms and Conditions be in conflict, the provisions of the special section take precedence.

A.3. Creation of a contract between S71 and the counterparty

A.3.1. If and insofar as S71 presents a provisional “deal memo” or “brand cooperation agreement” (i.e., an expanded offer describing the nature and scope of services, referred to hereinafter as “Offer”) to the counterparty in the course of contract negotiations, the terms set forth therein are subject to change. A contract is made only upon written acceptance by S71 of the client deal memo confirmed by the counterparty.

A.3.2. For orders from agencies, the Business doing the advertising must be specified by name (name, complete address and contact information, VAT ID). S71 may demand to see proof of the agency-client relationship. In these cases, too, the agency is the counterparty. Billing will be to the agency. In the event the agency is the counterparty, upon creation of the order it assigns and transfers to S71 by way of security the payment claims against its client for the agreement underlying the demand. S71 now hereby accepts such assignment and transfer. It may disclose the assignment to the agency’s client if the demand is not paid within one month after the due date.

A.3.3. For agency bookings, S71 reserves the right to forward booking confirmations to the agency’s client.

A.4. Identification under advertising regulations

The counterparty acknowledges that Special Marketing Projects may have to be identified in various ways under advertising regulations. The counterparty agrees that implementation by the Vendor will be exclusively in conformance with applicable legal regulations (particularly media and advertising regulations), and in cases where the counterparty is not considered the distributor of the Special Marketing Project, S71 alone can and will decide which kinds of identification are performed.

A.5. Performance of services

S71 is free to decide the nature and manner of performing the agreed service. In particular, S71 is authorized to hire third parties in all phases of any Special Marketing Project. This does not change any aspect of the performance relationship between S71 and the counterparty.

A.6. Acceptance of the service; warranty

A.6.1. Where the counterparty has a right of inspection and acceptance according to legal or contractual provisions or unless the contract contains provisions to the contrary, the counterparty must examine the services performed by S71 for defects promptly after delivery and must provide notification in text form (e-mail suffices) as to what concrete grounds may prevent acceptance. One change loop will be granted to the counterparty for each content piece. If no statement is made promptly to the S71 contact person named in the offer, the service is considered accepted.

A.6.2. If, due to force majeure, contractual obligations cannot be met or not in a timely or proper manner, S71 is relieved of its performance obligation in this regard during the force majeure event. “Force majeure” is understood to be exclusively those events whose causes are beyond the control of S71. S71 must catch up on the contractual obligation promptly after the end of the force majeure event.

A.7. Liability of S71

A.7.1. S71 is liable only for damage suffered by the counterparty:

– which S71 or its legal representatives or managing agents caused through intentional misconduct or gross negligence;

– which was caused through violation of an obligation of S71 that is essential for achieving the purpose of the contract (material contractual obligations);

– if such claims result from the Law on Product Liability;

– if a guarantee for the characteristics of the object was provided or fraudulently misrepresented by S71, in case of purchase contracts or contracts for work and services.

A.7.2. S71 is fully liable for damages caused through intentional misconduct or gross negligence, or if there is injury to life, limb, or health. In other cases damage claims are limited to the foreseeable damages typical for the contract, and to 5% (five percent) of the order value in case of default. Where S71 is liable only in the amount of the typically foreseeable damages, there is no liability for indirect or consequential damages or lost profits. Liability under the Law on Product Liability shall remain unaffected thereby.

A.7.3. In cases other than those named above, liability of S71 is precluded hereby, regardless of the cause in law. Where S71’s liability is precluded, this also applies for the personal liability of employees, workers, staff, representatives, and agents of S71.

A.8. Liability of the counterparty

The counterparty warrants and shall ensure that it will not publish unlawful or immoral content or make reference thereto in the course of the cooperation. If and insofar as the counterparty provides content or materials for the Special Marketing Project, it warrants and shall ensure that no third-party rights are infringed, specifically including but not limited to personal rights, trademark rights, proprietary rights, copyrights, design rights. The counterparty also permits S71/producer/Vendor to use the client’s name(s)/trademark(s)/logo(s) in connection with the Production and in communication in all media. The same applies for the use of excerpts from the Production and for the trailers produced for it for S71’s and/or producer’s and/or Vendor’s own advertising. The counterparty is required to indemnify S71 and hold it fully and completely harmless from any claims on first request, and to pay any and all damages asserted by third parties against S71 in this context. This applies both for claims asserted by third parties, regardless of the cause in law, and for the resulting costs of legal defense.

A.9. Reserved rights

All rights created in connection with the Special Marketing Project and not granted or transferred to the counterparty in writing shall remain with the Vendor. The counterparty grants S71 and enterprises affiliated with S71 according to AktG (German company law) Sections 15ff. the right to use the counterparty’s logo (brand and mark) as part of client presentations (e.g., mention as reference client) and on their own websites. In particular, without an express written agreement the counterparty is not authorized or entitled to utilize content (specifically including but not limited to images, video, or social media content, such as postings), neither partially nor in toto, on other than the agreed video platforms or social media channels and/or to use excerpts for PR and/or merchandising purposes, or to cause it to be so utilized or used by third parties. Furthermore, without an express written agreement no rights are transferred for the commercial utilization of images and/or names of actors or contributors or other participants in the Special Marketing Project.

A.10. Extraordinary termination

A.10.1. Unless agreed otherwise, the statutory rules on termination shall apply. The right to terminate the agreement without notice for good cause shall remain unaffected by any arrangement. Good cause justifying termination without notice by S71 specifically includes but is not limited to cases where:

– the counterparty becomes insolvent, particularly if judicial insolvency proceedings are requested or initiated with respect to its assets or if the initiation of insolvency proceedings is rejected for lack of assets;

– the counterparty decides to liquidate its Business or actually ceases commercial operations;

– a formal reminder is sent and/or a temporary injunction is issued against one and/or both parties and/or a company belonging to ProSiebenSat.1 Media SE as a result of a performance under the contract that originated from the counterparty’s conduct;

– actions or orders by public agencies or other government entities conflict with the performance of the services owed by S71;

– S71 has a reasonable suspicion (which the counterparty cannot refute) that the counterparty or the offers and/or cooperation content it provides are in violation of legal provisions, particularly the Criminal Code or the Interstate Treaty on the Protection of Youth in the Media. There is reasonable suspicion as soon as S71 has fact-based indications of a violation of legal provisions, particularly from the time an investigation is opened against the counterparty or when the counterparty is requested to respond by other entities (e.g., state media authorities).

A.10.2. The services performed by S71 up to the time a termination letter is received must be compensated by the counterparty according to the scope of service. Furthermore, the compensation already paid up to that time is nonrefundable. A possible damage compensation claim by S71 against the counterparty shall remain unaffected thereby.

A.11. Payment terms

A.11.1. Unless separate arrangements are made, all payments are due in full 14 days after receipt of invoice. Partial performances by S71 may also be invoiced at any time. In this case S71 will state the partial performance on the invoice.

A.11.2. For Special Marketing Projects with a net order value of €100,000 or more, S71 may bill for a pre-payment equal to one third of the order value upon conclusion of the contract.

A.11.3. Bank charges are the responsibility of the counterparty. In all cases, checks are accepted by S71 only for the sake of fulfillment. Payments by the counterparty are considered to be made only when S71 has access to the funds.

A.11.4. In case of delay in payment, S71 may postpone further performance until the invoice is paid. There is also a right of retention in any case of significant deterioration in the counterparty’s financial condition, and also in case of significant deterioration in the financial condition of the client of the agency if the counterparty is an agency. The claim for payment nevertheless remains in force, including for any services not yet rendered. S71 may charge interest on arrears at a rate of 10 percentage points above the base interest rate. We explicitly reserve the right to assert further damages. The counterparty’s right to demonstrate lesser damages from arrears remains unaffected thereby.

A.11.5. The counterparty has a right of set-off only if its counterclaims have been adjudicated finally and without possibility of appeal, are undisputed, or are acknowledged by S71. Furthermore, it is authorized to assert a right of retention only if and insofar as its counterclaim is based on the same contractual relationship and has been adjudicated finally and without possibility of appeal, is undisputed, or is acknowledged by S71.

A.12. Nondisclosure

A.12.1. The parties are required to treat as confidential any and all information and data received from the respective other party in connection with implementation of the order, and may make it available to third parties only in the scope necessary for performance of the agreed services. This specifically applies but is not limited to price lists and contracts. This requirement applies even after the end of the order.

A.12.2. S71’s affiliated enterprises in its group of companies are not third parties in this respect. Moreover, S71 may share necessary information with contributors to Special Marketing Projects in a suitable form for the purpose of fulfilling the present agreement.

A.12.3. If and insofar as the counterparty is an agency, the agency will ensure through appropriate nondisclosure agreements that, for their part, the clients it serves do not share with third parties the information received in the course of implementing the order. Disclosure by the agency to an auditor hired by the agency’s client for media auditing or benchmarking purposes is permitted, provided the auditor undertakes in writing to preserve secrecy, ensure data privacy and data security, and to comply with antitrust regulations. In the course of any audit or benchmarking process, neither the agency nor the auditor may disclose any information that would permit the recipient to make inferences regarding the conditions for individual advertising clients. In no case may the information be disclosed or otherwise made available to competitors of S71.

A.13. Final provisions

A.13.1. Contracts and orders are governed by and shall be construed in accordance with the laws of the Federal Republic of Germany, precluding conflict-of-laws provisions and UN commercial law (CISG). In case of any dispute whatsoever arising from the present contractual relationship, the courts of Berlin are agreed to have exclusive jurisdiction and venue.

A.13.2. S71 may transfer the rights and obligations vis-à-vis the counterparty to enterprises in which S71 participates directly or indirectly and/or to enterprises that are affiliated enterprises of ProSiebenSat.1 Media SE (according to AktG [Company Law] Sections 15ff.).

A.13.3. The counterparty will be notified of changes to these General Terms and Conditions by e-mail or telefax. They are considered approved unless the counterparty lodges a written objection with S71 within one month after announcement of the changes.

A.13.4. Should individual or multiple provisions of these General Terms and Conditions be or become invalid, the validity of all other provisions or agreements shall not be affected thereby.

A.13.5. There are no oral supplements. Any prior agreements expire without substitution. Changes and amendments to this agreement, including changes to this clause, must be made in writing in order to be valid. Notice of termination or any other unilateral statement must be made in writing in order to be valid. “In writing” within this sense means written form according to BGB (German Civil Code) Section 126 (1) and (2). However, it is also fulfilled by telefax.

 

Special section: Special Terms and Conditions for various advertising forms

B. Special Terms and Conditions for Outfitting

B.1. Definitions

The following definitions apply within the meaning of these Special Terms and Conditions for Outfitting:

• “Producer”: the Business tasked by S71 to create the Production (may be S71 itself, the Vendor, or a third party), as named in the outline data;
• “Outfitter”: the counterparty of S71 which outfits the Production with free production aids;
• “Vendor”: the Vendor specified in the outline data of a video-on-demand service or channel (e.g., on YouTube, Instagram, etc.);
• “Production”: the work specified in the outline data;
• “Outfitting”: material resources or other production aids provided by the Outfitter to the Vendor without charge for purposes of the Production;
• “Outfitter Notice”: the notice that the Outfitting was used, as a text link in the video description, as a notice included in the narration, or in the closing credits of the Production, by displaying the name of the outfitting Business (without logo in each case);
• “Noncompetition”: S71’s obligation not to use Outfitting from third parties who, according to the Nielsen Media Research Family, are shown as competitors with the Outfitter with their goods and/or services for the product group, for episodes of the Production in which Outfitting from the Outfitter is used;
• “Performance Value”: (1) the net total value of the supply value of Outfitting stated in the outline data, and (2) the net total value of the media value of the Outfitter Notices inserted in the episodes of the Production as a result of the Outfitting;
• “Delivery Deadline”: the date named in the outline data by which the Outfitter must deliver the Outfitting being provided for the Production to the Production location agreed with the Vendor or S71.

B.2.  Subject matter and purpose of the contract

B.2.1.  The Outfitter is familiar with the rough idea for the Production.

B.2.2.  The Vendor utilizes the production aids exclusively on the basis of these General Terms and Conditions for Outfitting.

B.2.3.  The Outfitter is required to make the Outfitting available to the Vendor for the Production at no cost, irrespective of the tax evaluation according to part B.4 of the General Terms and Conditions for Outfitting.

B.2.4.  The Outfitter is required to do all that is necessary for the Outfitting to be able to be used in the Production or to be available on site. In particular, the Outfitter will make the Outfitting available to the Vendor in a timely manner. The counterparties will discuss and arrange specific delivery dates for the Outfitting, taking adequate supply leadtime into account in each case. The Vendor reserves the right to make changes to the production dates.

B.2.5.  In the event a portion of the planned Outfitting cannot be utilized due to lacking or inadequate support from the Outfitter, the Outfitter cannot use this to establish any claims, specifically including but not limited to any claim against the Vendor for reimbursement or compensation.

B.2.6.  Unless otherwise indicated in the outline data, the Outfitter pays the costs of delivering the Outfitting. If the Outfitting is provided on loan, the Outfitting shall be returned by the same method and with the same cost burden as the delivery.

B.2.7.  The Vendor is not required to use (or cause to be used) all or any part of the Outfitting in the Production.

B.2.8.  The Outfitter acknowledges and agrees that:

• The outfitting notice will be integrated into the Production exclusively in conformance with the media regulations applicable to the Vendor;
• Editorial responsibility and independence will be preserved and maintained when implementing the Outfitting;
• The Outfitter will be given no possibility of influencing the editorial content of the Production;
• The Outfitter will not be considered in the design or the look and feel of the Production;
• There will be no promotional spotlighting of the Outfitter’s products in the Production;
• The Production may be supported by multiple Outfitters and/or product placement clients. No claim to exclusivity is established by the present agreement;
• The Vendor is at liberty not to broadcast the Production and/or to change the broadcast time of the Production;
• There will be an Outfitter Notice in the specific outfitted episode of the Production; if there are multiple Outfitters, they will be named in alphabetical order;
• Other than displaying the name of the Outfitter for information purposes, the Outfitter Notice will contain no additional promotional statements of any kind whatsoever, in particular no references to the Outfitter’s products;
• Due to media regulations regarding product placement, the use of free Outfitting may be subject to special labeling requirements when broadcasting the Production and/or making it available for retrieval.

B.2.9.  Noncompetition is not provided for the Production and/or Production episodes in which the Outfitter’s Outfitting is used.

B.2.10. The Outfitter acknowledges that it can book product placement in addition.

B.3.  Copyright, trademarks, and other proprietary rights

B.3.1.  By this contract the Vendor acquires no rights to the protected designations of the Outfitter (e.g., trademark, name, company logo), unless otherwise provided for hereinafter. The same applies for the Outfitter with respect to the protected designations of the Vendor.

B.3.2.  The Outfitter allows the Vendor to use the name of the Outfitter named in the outline data for the Outfitter Notice in connection with the making and comprehensive utilization of the Production, and in communication in all media. The same applies for the use of clips from the Production and for the trailers created for it for the Vendor’s own advertising.

B.3.3.  In particular, the Vendor may create the Production or cause it to be created with the Outfitter Notice and to utilize it or cause it to be utilized in all media without restriction of time, content, or territory, to extensively promote utilization of the Production or cause it to be promoted in all media, and to grant these rights to third parties exclusively or non-exclusively, partially or in toto.

B.3.4.  The rights set forth in B.3.2 and B.3.3 will remain in force even after the end of the cooperation.

B.3.5.  The Vendor acquires all rights of use, industrial property rights, and other rights created in the past or the future in connection the Production and/or acquired for it in the past or the future, for exclusive, transferable use without restriction of time, subject matter, or territory. The Vendor may transfer all named rights, also specifically for the exercise thereof, and may itself collect the full amount of any and all resulting payments.

B.4. Set-off of services, billing, value-added tax

B.4.1.  The counterparties’ Performance Values as stated in the outline data do not include value-added tax, which will be added.

B.4.2.  Within two weeks after the end of filming for the Production, each counterparty (“Provider”) must issue a proper invoice conforming to UStG (Law on Value-Added Tax) Sections 14, 14 (a) for the performance it has provided to the other counterparty (referred to hereinafter as “Recipient”). If the Provider fails to fulfill this requirement, the Recipient may set a grace period of one additional week for the Provider in text form; after expiration of the grace period without result, the Recipient may issue an invoice for the performance in question (credit statement within the meaning of UStG Section 14 [2] sentence 2), which the Provider may contradict only in case of inaccuracy.

B.4.3.  The Recipient must pay the value-added tax owed for the performance to the Provider concurrently in exchange for the invoice or credit notice, as follows: to the extent the respective demands of the counterparties according to the present part 4.2 of the General Terms and Conditions for Outfitting are equal in amount, the demands are hereby set off, i.e., the Provider can demand payment only for the excess amount.

B.4.4.  If and insofar as value-added tax was improperly billed, paid, or set off, the Recipient is entitled to a refund; however, to avoid or eliminate any tax liability in this regard under UStG Section 14 (c) (1) or (2), necessary and possible actions/measures should be performed by the Recipient concurrently in exchange.

B.4.5.  Claims by a counterparty as Provider in accordance with the present part B.4 do not become time-barred until six months after the value-added tax assessment for the tax period in which the Provider’s (last) performance under this contract was provided becomes formally and substantively unappealable. Claims by a counterparty as Recipient in accordance with the present part B.4 do not become time-barred until six months after the value-added tax assessment for the tax period in which the (last) performance was purchased from the Provider, or (if different) in which the corresponding prior tax deduction was asserted by the Recipient, becomes formally and substantively unappealable.

B.4.6.  If agreed according to the outline data, the following rule applies for contests: according to the common understanding of the counterparties, the provision of the Outfitting by the Outfitter as part of contests is to be paid to third parties in the name of the Outfitter. To the extent enterprises in the ProSiebenSat.1 Group suffer negative tax consequences in this context (e.g., because the tax authorities consider the prizes to be a payment from the respective enterprise of the ProSiebenSat.1 Group and the respective enterprise of the ProSiebenSat.1 Group therefore owes value-added tax on the payment or the respective enterprise of the ProSiebenSat.1 Group is denied a prior tax deduction), the Outfitter will compensate the corresponding enterprise in the ProSiebenSat.1 Group for those negative consequences.

B.4.7.  Claims by the concerned enterprise in the ProSiebenSat.1 Group do not become time-barred until six months after the value-added tax assessment in which the negative tax consequence is set forth (e.g., the value added tax liability or denial of the prior tax deduction) becomes formally and substantively unappealable.

B.5. Guarantee

B.5.1.  The Outfitter guarantees to the Vendor that the Outfitter’s name used in the Outfitter Notice is legally valid and unencumbered by third-party rights impeding use in the Outfitter Notice, and in particular that the name is not pledged and no rights of use or other rights in rem have been granted and that the Outfitter’s name is not the object of compulsory enforcement actions.

B.5.2.  The Outfitter further guarantees to the Vendor the lawfulness (particularly under copyright and competition law) of the Outfitting to be provided and other of the Outfitter’s materials that become identifiable in the Production upon use of the Outfitting. The Outfitter guarantees that no third-party rights are infringed by the respective Outfitting item, and that the rights necessary for the contractual purpose are in force.

B.5.3.  The Outfitter is required to indemnify the Vendor and hold it fully and completely harmless from any and all claims by third parties which they assert based on use of the Outfitting in the Production conforming to the contract, and to pay any and all damages incurred thereby, including reasonable costs of legal defense. The indemnification requirement does not apply to damages for which the Vendor is responsible.

B.5.4.  In the event the Outfitter culpably fails to deliver the Outfitting (or to cause it to be delivered) contrary to the Delivery Deadline named in the outline data, or fails to do so in a timely manner, S71 is entitled at its election to terminate the agreement for cause (see B.6.2) or to procure the Outfitting itself; in case of the latter, the Outfitter is required to provide reimbursement by way of damage compensation for added costs incurred as a result when making the Production (e.g., resulting from the need to create or purchase substitute props, filming delay).

B.5.5.  The legal positions/claims set forth in parts B.5.1 to B.5.4 remain in force even after the end of the cooperation.

B.6. Term of the contract, termination

B.6.1.  The term of the contract begins on the day the agreement is signed or, if earlier, no later than the day the Outfitting is delivered, and ends upon publication of the Production, without the need for notice of termination. If the Production is discontinued prematurely, the term of the contract is reduced accordingly.

B.6.2.  The right of extraordinary termination for good cause shall remain unaffected thereby. In particular, there is good cause if the provided Outfitting is not delivered in a timely manner, is defective (for instance, Outfitting is not in working order and/or cannot be used in the Production as intended and/or Outfitting violates legal requirements and/or administrative/criminal proceedings are pending with respect to the Outfitting and/or the Outfitting harms the health of the Creator [e.g., allergic reactions for cosmetic articles]).

B.7. Considerateness and confidentiality

B.7.1.  The Outfitter is required to take the Vendor’s legitimate interests into account, particularly its reputation. The same applies for the Vendor with respect to the Outfitter.

B.7.2.  The parties are required to treat the content of this contract as confidential vis-à-vis third parties, specifically including but not limited to the performance owed. Disclosure to third parties of any manner of contractual agreements whatsoever is permitted only with the express prior written consent of the other party, to preserve legitimate interests of one or both parties, or based on compulsory legal provisions. This requirement continues in force even after the end of the contract. Enterprises belonging to ProSiebenSat.1 Media SE are not considered third parties in this context.

B.7.3.  The Outfitter is specifically not permitted to communicate the contractual Outfitting of the Production for its own promotional or non-promotional purposes without prior permission from the Vendor, for instance by using the format title, video, and/or audiovisual material. The granting and exercise of merchandising and other copyright-related rights of use which may be the object of a separate contract (with ProSiebenSat.1 Licensing GmbH and/or S71) shall remain unaffected by sentence 1, as shall the granting and exercise of rights that are the object of a separate product placement contract.

B.8. No assignment or pledging

The demands between the parties may not be assigned or pledged to third parties.

 

C. Special Terms and Conditions for Product Placement

C.1. Definitions

The following definitions apply within the meaning of these Special Terms and Conditions for Product Placement:

• “Product Placement”: the paid Product Placements described in the outline data, which S71 is tasked to implement as part of the Production or within the individual episodes of the Production specified there;
• “Client”: S71’s counterparty who uses this agreement to book the Product Placements in order to promote the media image of the Outfitting items provided for the free use of the Vendor and/or the Producer in the Production;
• “Product Area”: the area of goods and/or services designated in the outline data, for which S71 grants Noncompetition to the Client on the basis of this agreement.

Moreover, the definitions in the Special Terms and Conditions for Outfitting in part B.1 apply accordingly.

C.2. Subject matter and purpose of the contract

C.2.1.  The Client was made aware of the rough idea for integrating the Product Placement in the Production in the course of the BRAND Cooperation Agreement/Deal Memo. S71 must have the Product Placement implemented for the Client in the Production in compliance with the media regulations applicable to the Vendor.

C.2.2.  The Client must do everything necessary on its end to allow the Product Placement to be implemented in the Production or put into effect on site. In particular, the Client will make the Outfitting/objects to be placed available to the Vendor in a timely manner.

C.2.3.  In the event any portion of the planned Product Placement cannot be implemented due to lacking or inadequate support from the Client, the Client cannot use this to establish any claims, specifically including but not limited to any claim against the Producer and/or the Vendor and/or S71 for reimbursement or compensation. In particular, the Client remains obligated to make payments.

C.2.4.  The Client acknowledges and hereby agrees that:

• The Product Placement will be implemented exclusively in conformance with the legal regulations applicable to the Vendor, and particularly only to the extent of editorial necessity, and will be identified in accordance with the applicable legal requirements;
• Editorial responsibility and independence will be preserved when implementing the Product Placement;
• This agreement does not establish any possibility for the Client to influence the editorial content of the Production, and in particular the Client will not be considered in the design or look and feel of the Production;
• Other than the permitted Product Placement, there will be no naming or display of company logos, products, and/or brands of the Client, nor any additional promotional statements of any kind whatsoever;
• The Product Placement booking in the Production does not confer the right to directly invite purchasing of the Client’s products in it;
• There will be no other promotional spotlighting of the Client’s products in the Production;
• The Client is not given any right to approve the screenplay script nor the Production episodes in which the Product Placement is integrated;
• The Production may be supported by multiple Outfitters and/or Product Placement clients. Subject to part C.2.6, no claim to exclusivity is established by the present agreement;
• The Vendor is at liberty not to broadcast the Production or make it available for retrieval and/or to change the Slot, broadcast time, or broadcast period of the Production;

C.2.5.  Changing the Slot, broadcast time, or broadcast period of the Production shall not affect the Client’s payment obligation. If the Production episodes with Product Placement as a whole are not broadcast or published, the Client is not required to pay the compensation.

C.2.6.  If so agreed, S71 will grant Noncompetition for the Product Area named in the outline data with respect to the Production episodes in which the Client’s Product Placement is integrated.

C.3. Copyright, trademarks, and other proprietary rights

C.3.1.  By this contract neither S71, the Producer, nor the Vendor acquire any rights to the protected designations (e.g., trademark, name, company logo), unless otherwise provided for hereinafter. The same applies for the Client with respect to the protected designations of S71, the Producer, and the Vendor.

C.3.2.  The Client allows S71 / Producer / Vendor to use the name(s) / brand(s) / logo(s) of the Client in connection with the Product Placement, making and comprehensive utilization of the Production, and in communication in all media. The same applies for the use of clips from the Production and for the trailers created for it for the own advertising of S71 and/or Producer and/or Vendor.

C.3.3.  In particular, the Vendor may create the Production or cause it to be created with the Product Placement and to utilize or broadcast it or cause it to be utilized or broadcast in all media without restriction of time, content, or territory, to extensively promote utilization of the Production or cause it to be promoted in all media, and to grant these rights to third parties exclusively or non-exclusively, partially or in toto.

C.3.4.  The rights set forth in C.3.2 and C.3.3 will remain in force even after the end of the cooperation.

C.3.5.  The Vendor alone acquires all rights of use, industrial property rights, and other rights created in the past or the future in connection with the Production and/or acquired for it in the past or the future, for exclusive, transferable use without restriction of time, subject matter, or territory. The Vendor may transfer all named rights, also specifically for the exercise thereof, and may itself collect the full amount of any and all resulting payments.

C.4. Guarantee

C.4.1.  The Client guarantees to S71, the Producer, and the Vendor that the Client’s name / brand / logo used in connection with the Product Placement, and the Outfitting, are legally valid and unencumbered by third-party rights, and in particular that no pledging of those items has occurred and no rights of use or other rights in rem have been granted or the name / brand / logo is the object of compulsory enforcement actions.

C.4.2.  The Client further guarantees to S71, the Producer, and the Vendor the lawfulness (particularly under copyright and competition law) of the Outfitting to be provided and other of the Client’s materials that become identifiable in the Production upon implementation of the Product Placement. The Client guarantees that no third-party rights are infringed by the respective Outfitting item, and that the rights necessary for the contractual purpose are in force.

C.4.3.  The Client guarantees that the Product Placement does not represent religious or political or doctrinal statements. The same applies for unlawful or immoral or otherwise socially objectionable content or references. In particular, Product Placement for the benefit of products or services that may not be promoted on the radio and/or telemedia according to the legal regulations applicable for the Vendor’s Program is precluded (i.e., e.g., advertising for tobacco products, prescription drugs, or medical treatments).

C.4.4.  The Client is required to indemnify S71/Producer/Vendor and hold them fully and completely harmless from any and all claims by third parties asserted against S71, Producer, or Vendor based on implementation of the Product Placement conforming to the contract, and to pay S71, Producer, and Vendor for any and all damages incurred as a result of this or of Outfitting that is not provided in a timely manner, including reasonable costs of litigation.

C.4.5.  The legal positions/claims of S71, Producer, and Vendor set forth in parts C.4.1 to C.4.4 remain in force even after the end of the cooperation.

C.5. Term of the contract, termination

C.5.1.  The term of the contract begins on the day noted in the Deal Memo/Brand Cooperation Agreement as the start of the contract, and ends with the premiere of the final episode containing the Product Placement, without the need for notice of termination.

C.5.2.  The right of extraordinary termination for good cause shall remain unaffected thereby. Part B.6.2 applies accordingly with respect to good cause.

C.6. Considerateness and confidentiality

C.6.1.  The Client is required to take the legitimate interests of S71, the Producer, and/or the Vendor into account, particularly their reputation. The same applies for S71 with respect to the Client.

C.6.2.  The parties are required to treat the content of this contract as confidential vis-à-vis third parties, specifically including but not limited to the performance owed. Disclosure to third parties of any manner of contractual agreements whatsoever is permitted only with the express prior written consent of the other party, to preserve legitimate interests of one or both parties, or based on compulsory legal provisions. This requirement continues in force even after the end of the contract. Enterprises belonging to ProSiebenSat.1 Media SE and the respective Producer are not considered third parties in this context.

C.6.3.  The Client is specifically not permitted to communicate the contractual Product Placement for its own promotional or non-promotional purposes without prior permission from S71 and Producer. The granting and exercise of merchandising and other copyright-related rights of use which may be the object of a separate contract shall remain unaffected by sentence

 

D. Special Terms and Conditions for Performance and Affiliate Marketing

D.1. Definitions

The following definitions apply within the meaning of these Special Terms and Conditions for Performance and Affiliate Marketing:

• Affiliate Network: the technical service provider providing tracking links and other advertising links via a technical platform or software solution which the Vendor and Client use for performance and affiliate marketing activities;
• “Vendor”: the Vendor (specified in the outline data) of a video-on-demand service or channel (e.g., on YouTube, Instagram, etc.) who integrates the performance and/or affiliate marketing activities in the Production;
• “Client”: the party wishing to integrate the performance and/or affiliate marketing activities in the Production with the help of the Affiliate Network;
• “Production”: the work specified in the outline data.

D.2. Subject matter and purpose of the contract

D.2.1.  The Client was made aware in the offer of the rough idea for integrating the performance and/or affiliate marketing activities in the Production. S71 must have the performance and/or affiliate marketing activities implemented for the Client in compliance with the media regulations applicable to the Vendor.

D.2.2.  The Client must do everything necessary on its end to allow the performance and/or affiliate marketing activities to be implemented in the Production.

D.2.3.  The Client acknowledges and hereby agrees that:

• The performance and/or affiliate marketing activities will be implemented exclusively in conformance with the legal regulations applicable to the Vendor and will be identified in accordance with the applicable legal requirements;
• The editorial responsibility and independence of the Vendor will fundamentally be preserved, except where pure advertising content is being produced; in the latter case the Client can jointly determine the content of the Production.

D.2.4.  If so agreed, S71 will grant Noncompetition for the Product Area named in the outline data with respect to the Production episodes in which the Client is integrated.

D.3. Copyright, trademarks, and other proprietary rights

D.3.1.  By this contract neither S71, the Producer, nor the Vendor acquire any rights to the Client’s protected designations (e.g., trademark, name, company logo), unless otherwise provided for hereinafter. The same applies for the Client with respect to the protected designations of S71, the Producer, and the Vendor.

D.3.2.  The Client allows S71 / Producer / Vendor to use the name(s) / brand(s) / logo(s) of the Client in connection with the performance and/or affiliate marketing activity.

D.3.3.  The rights set forth in C.3.2 will remain in force even after the end of the cooperation.

D.3.5.  The Vendor alone acquires all rights of use, industrial property rights, and other rights created in the past or the future in connection with the Production and/or acquired for it in the past or the future, for exclusive, transferable use without restriction of time, subject matter, or territory. The Vendor may transfer all named rights, also specifically for the exercise thereof, and may itself collect the full amount of any and all resulting payments.

D.4. Guarantee

D.4.1.  The Client guarantees to S71, the Producer, and the Vendor that the Client’s name / brand / logo used in connection with the performance and/or affiliate marketing activity are legally valid and unencumbered by third-party rights, and in particular that no pledging of those items has occurred and no rights of use or other rights in rem have been granted or the name / brand / logo is the object of compulsory enforcement actions.

D.4.2.  The Client further guarantees to S71, the Producer, and the Vendor the lawfulness (particularly under copyright and competition law) of the Client’s materials to be provided. The Client guarantees that no third-party rights are infringed, and that the rights necessary for the contractual purpose are in force.

D.4.3.  The Client guarantees that no religious or political or doctrinal statements are represented in the performance and/or affiliate marketing activity. The same applies for unlawful or immoral or otherwise socially objectionable content or references. In particular, performance and/or affiliate marketing activities for products or services that may not be promoted on the radio and/or telemedia according to the legal regulations are precluded (i.e., e.g., advertising for tobacco products, prescription drugs, or medical treatments).

D.4.4.  The Client is required to indemnify S71 / Producer / Vendor and hold them fully and completely harmless from any and all claims by third parties asserted against S71, Producer, or Vendor based on implementation of the performance and/or affiliate marketing activity conforming to the contract, and to pay S71, Producer, and Vendor for any and all damages incurred as a result of this, including reasonable costs of litigation.

D.4.5.  The legal positions/claims of S71, Producer, and Vendor set forth in parts D.4.1 to D.4.4 remain in force even after the end of the cooperation.

D.5. Term of the contract, termination

D.5.1.  The term of the contract begins on the day noted in the offer as the start of the contract, and ends upon publication of the Production containing the performance and/or affiliate marketing activities, without the need for notice of termination.

D.5.2.  The right of extraordinary termination for good cause shall remain unaffected thereby.

D.6. Considerateness and confidentiality

D.6.1.  The Client is required to take the legitimate interests of S71, the Producer, and/or the Vendor into account, particularly their reputation. The same applies for S71 with respect to the Client.

D.6.2.  The parties are required to treat the content of this contract as confidential vis-à-vis third parties, specifically including but not limited to the performance owed. Disclosure to third parties of any manner of contractual agreements whatsoever is permitted only with the express prior written consent of the other party, to preserve legitimate interests of one or both parties, or based on compulsory legal provisions. This requirement continues in force even after the end of the contract. Enterprises belonging to ProSiebenSat.1 Media SE and the respective Producer are not considered third parties in this context.

D.6.3.  The Client is specifically not permitted to communicate the contractual performances for its own promotional or non-promotional purposes without prior permission from S71 and Vendor. The granting and exercise of merchandising and other copyright-related rights of use which may be the object of a separate contract shall remain unaffected by sentence 1.