Project Terms for the Public Project "Artificial Garden"
2. Right to be Named as Author
3. Granting Rights of Use to jovoto
PLEASE NOTE. IMPORTANT
By submitting an idea to the project, the creative grants the rights of use listed in section 3 to jovoto.
3.1 Even when participating in a project or submitting an idea, the creative still retains the right, without restriction on content, time or space, to use his own idea for the purpose of self-promotion provided he observes the rights of third parties, in particular those of the client. This does not apply to the first six months following the end of the submission phase of a project. During this period, the creative is not permitted to use his idea in any other manner. The client's trademarks and other related rights may only be used if and when the client explicitly allows this for the performance of the competition.
3.2 jovoto wishes to point out explicitly that participation in a project and/or submission of an idea does not confer on the creative any right to use material of jovoto or the client. In particular, participation in the project does not give the creative any right to use the logo or other materials belonging to the project sponsor (client) or to third parties. This does not apply in cases where the project terms or the project briefing call for other arrangements.
3.3 The creative submitting an idea to a project grants to jovoto non-exclusive transferable rights, without restriction on time, space or content, to use the idea, including associated creative works and any comments submitted therewith to the extent required for the operation of the platform. In particular, the creative grants to jovoto the right to make every comment and/or idea and the associated works on the platform accessible to third parties and to make any reproductions necessary for this purpose. The creative grants to jovoto the right to edit the works in question in order to present them more favorably on the website.
3.4 In addition, the creative grants to jovoto the right to make comments and/or the idea and the associated works publicly accessible for the purpose of presentation beyond the confines of the project, for example in the jovoto newsletter or in its blog, to distribute them and to edit them, in particular to create and present summaries or individual pictures of videos and texts, scaled-down versions of photographs ('thumbnails') etc.
3.5 Furthermore, the creative grants to jovoto the non-exclusive right, without restriction on content, time or space, to use the ideas and associated works in any medium for the purpose of communicating and promoting the project and/or ideas submitted to the project. To this end, jovoto may reproduce the ideas and associated works, distribute, edit, rearrange them, make them publicly accessible, broadcast and publicly play them in other ways, whereby this includes in particular making them available or broadcasting them by transmitting the content to fixed or mobile terminal devices of other creatives as part of automated subscription services (push services) or download services (pull services) (e.g. by podcast, RSS feed, Atom feed, XML interface or other technologies). The parties to this agreement consider the right of public reproduction also to include, in particular, the right to render the idea and associated works on the website using methods to play back audio and video data that can be received and simultaneously played by creatives (streaming), including the possibility of configuring the stream in such a way that the broadcast data can be stored by the recipient. In order to document the project and/or to promote the platform, jovoto may in particular include the creative's idea, alone or together with the ideas of other creatives, in a catalog of ideas, which will be made available to the client on conclusion of a project, and which it may reproduce as a different form of print publication and distribute (including as poster), where this serves as an appropriate form of publication for the platform, present at trade fairs (in particular in the form of banners, posters, video clips), make accessible as "best cases" on the platform, also in conjunction with other projects, or make generally publicly available, include in press releases or make available to third parties in the course of normal public relations work (for example for external press reports in journals).
3.6 In order to secure the greatest possible level of awareness and reach for the creative's ideas, the creative additionally grants to jovoto the right to publish the creative's ideas, and/or to have them published, on websites of external providers, to make the reproductions required for this and to transfer the individual works (i.e. the corresponding files) to the relevant third party, and/or to grant these providers technical access to the ideas for the above-mentioned purposes, including the right to reproduce the ideas for inclusion in their own websites. In order to achieve the aims mentioned in this sub-section, jovoto may use popular, established technical methods (e.g. embedded functions). The creative therefore consents to the relevant third-party provider adopting the works in question and also publishing them.
3.7 The creative will receive no monetary recompense for granting the aforementioned rights of use to jovoto. In return for being granted the rights, jovoto will present the creative's ideas on the platform and will give him the opportunity to sell his ideas to third parties or to jovoto and to participate with his ideas in projects.
3.8 In technical terms, the platform is a highly complex system with a large number of links. The content of creatives builds on from different user content and is cross-linked with it in many ways, etc. In addition, as a platform for creative services, the platform must provide a high degree of transparency and traceability – also covering the possibility of investigating or searching through events set in the past. The granting of rights of use in accordance with section 3 is therefore irrevocable and extends beyond any end to the user agreement. Content submitted by the creative to the platform can therefore remain accessible on the platform even after this license agreement terminates or the creative is no longer a user of the platform for other reasons.
3.9 jovoto also endeavors wherever possible to allow the creative every freedom to exploit his ideas vis-à-vis third parties. Within the scope of projects the creative may, where applicable, have the opportunity to subject his idea to open content licensing terms (such as Creative Commons licensing). Whether and to what extent this is to apply in an individual project (including the relevant details) will be specified in the briefing. The creative must in all cases explicitly indicate the use of third-party materials, including those that are subject to open licensing.
4. Granting Rights of Use to the Client
PLEASE NOTE. IMPORTANT
By submitting an idea to the project, the creative grants the rights of use listed in section 4 to the client. The granting of rights of use in accordance with section 4.2 ff. is subject to the condition precedent that the client decides to acquire the creative's idea.
4.1 By participating in a project, the creative grants to the client the non-exclusive right of use, without restriction on content, time or space, to present his ideas and works as such outside of advertising campaigns or in order to promote the project, alone or together with the ideas and works of other creatives participating in the project, in any medium. Moreover, the creative grants to the client the right to use the ideas and works for the purpose of internal and external market research and for preparing the acquisition of the exclusive rights of use to the ideas and works. This may require the distributing and making the ideas and works publicly accessible, limited to the aforementioned purposes.
4.2 By accepting this license agreement, the creative grants to jovoto, subject to the condition precedent of the client's decision to acquire the corresponding rights from jovoto, rights of use to the idea that the creative has submitted to the project, together with all works, performances and activities contained in the idea, and to elements protected by copyright, design and performance protection rights associated with the idea (hereinafter referred to collectively as "works"), for exploitation in all known and unknown manners of utilization, in particular to the extent detailed below. This includes in particular – also in cases where rights arise at a later date – the exclusive, transferable right, unrestricted by content, time and space, and capable of being sub-licensed in parts, to reproduce the idea, and all works, performances and activities contained in the idea, irrespective of whether for payment or not, to distribute them, exhibit, rent out, to publicly render, in particular present, perform, display, make publicly accessible, broadcast, relay via cable or other systems (cable rebroadcasting), reproduce through video or audio medium, to make public via screen, loudspeaker or any other technical device, programs already broadcast or recordings made on the basis of public transmissions or to reproduce in any other intangible form, to edit and rearrange as well as to publish and use any such edited or rearranged form.
4.3 The aforementioned rights of exploitation for commercial or promotional purposes include in particular:
4.3.1 The right to reproduce the idea, and all works, performances and activities contained in the idea, in any tangible and/or intangible, digital or analog, form, e.g. through reprography or transfer to analog media (e.g. packaging, promotional material, advertisements, placards, books, stickers, printouts, pictures, illustrated books, books, comics, leaflets, flyers, photographs, photocopies, photo-mechanical processes, posters, magazines, newspapers), through digitalization or any other form of digital storage and to temporarily and/or permanently store on any other known type of data, video and/or video/audio media such as diskette, DVD, DVD-R, DVD-RW, DVD-RAM, HD DVD, Blu-ray Disc, CD-ROM, CD-R, CD-RW, CD-Audio, Super Audio CD, audio cassette, vinyl record, MMC, SD, MS, MS Pro, Flash Card, Smart Card, Secure Digital Card, memory stick, MiniDisc, DAT, hard disk, server, proxy server, USB stick and/or via transmission in the Internet or other data networks or through transmissions or in database systems; in particular this also includes the right to use the idea and all works, performances and activities contained in the idea for company-internal and -external presentations, in company-internal media such as intranet, PowerPoint presentations and for the creation and distribution of advertisements in print media and in electronic, especially online, means of advertising;
4.3.2 The right to distribute or put into circulation the idea and all works, performances and activities contained in the idea in any known way and on all physical analog and digital media independently or in combination with other works, especially in support of a product, and/or to offer these to third parties, in particular to rent and lend out irrespective of the distribution channel and the embodiment, in particular through distribution of the idea and all works, performances and activities contained in the idea on the aforementioned digital or analog media via wholesalers, resellers or retailers, mail order and irrespective of whether by remote sale, electronic transaction, free transfer or free distribution;
4.3.3 The right to transfer the idea, and all works, performances and activities contained in the idea, in any known technical manner and to make them known, and in particular accessible to the public. This includes, in particular, the fact that the idea and the associated works may be stored in digital form in a data processing system from which they may then be retrieved by third parties 'on demand' as a stream or download or any other form as digital signal via wired or wireless media and/or transmitted there with the consequence that the stored data are transferred to the receiving device of the third party where they may be decoded after storage, intermediate storage or immediately, i.e. converted into text, images and/or sounds and made visible or audible. The idea and the associated works may also be made available to the third party in such a manner that he/she may store the idea and the works contained therein and/or parts thereof in his/her receiving device and may access them there repeatedly. Interactive use by way of on demand is characterized by the ideas stored in digital form being made available to members of the public who are not present at the source of where they are made available, and being made available in such a way that members of the public have access to them and can request their transmission at independent times and places even if transmission of the works to third parties takes place at a later point in time than at the one requested. The online right of use exists independently of the form of transmission chosen by the client or its licensees for the use of the protected material and includes, for example, interactive or non-interactive online systems, electronic databases, the Internet, the World Wide Web, social networks and platforms such as YouTube, Twitter, XING, Google+, LinkedIn or Facebook, Apps, IRC or news, file sharing or application service providing;
4.3.4 The right to send or forward the idea, and all works, performances and activities contained in the idea, to third parties irrespective of whether in 'analog or digital' form whether via data networks in the form of subscription or download services (e.g. by streaming, video-on-demand, near-video-on-demand, podcasting, webcasting, simulcasting, IPTV, mobile TV, push services (such as RSS feed, XML interface, etc.) and pull services of all kinds) or via traditional modes of transmission such as public or private broadcast, rebroadcast and repeat broadcast via radio, television and similar systems of communication and reception, electromagnetic waves, electronic devices, wire, cable, satellite, antenna systems, digital means of communications and other technical equipment, whether via the client's own means of transmission or via public or private broadcast companies;
4.3.5 The right to publish the idea, and all works, performances and activities contained in the idea, first in any desired form at the point in time of the client's choosing irrespective of whether on any type of tangible media or in intangible form (e.g. on the Internet), irrespective of whether independently or in combination with other content such as a collection or multimedia work or as part of an encyclopedia;
4.3.6 The right to commercially exploit the idea, and all works, performances and activities contained in the idea, through the manufacture and sale of goods of all types (e.g. dolls, toys, stuffed animals, sports articles, household, bathroom and kitchen items, garments, printed matter including comics, sound storage media, headgear, buttons) and/or to exploit the media listed and described in this sub-section, the marketing of services of all types using the circumstances, names, titles, figures, illustrations or other relationships related to the idea, and all works, performances and activities contained in the idea, including the right to exploit the idea fully or in part through the production and sale of games/computer games, including interactive computer games, and/or other multi-media productions and/or other forms of work and to promote goods and services of any kind using such elements or through edited or unedited excerpts from videos ("merchandising right");
4.3.7 The right to modify, edit, combine, arrange the idea, and all works, performances and activities contained in the idea, in any manner, especially through correction and translation into any other language, through extension, conversion, augmentation, adaptation, complementing, through inclusion in databases or by the creation of collected works, through the substitution of images and figures, through changes to the characters of figures, or allowing such actions to be undertaken by third parties, and to publish, exploit, or have published and exploited, the edited or rearranged works in any of the ways described in the above provisions.
4.3.8 The rights granted exist irrespective of the technology used as the basis for the use of the right. In particular, the granting / transfer of rights of use are not bound to the form of data transmission (analog or digital), to the means of data transmission currently used or to the type of end-user receiving device. The client is especially entitled to allow this access via any type of equipment or device that is technically able to call up and/or represent the content provided. Access can be effected in particular with the aid of fixed devices (e.g. personal computer, set-top box for digital TV or Internet terminal) and mobile terminal devices, especially mobile telephones (via WAP, SMS, i-mode and any future standards), smartphones, electronic organizers, so-called personal digital assistants (based on operating systems such as Stinger, EPOC, Palm OS, Windows CE/Pocket PC), in particular via wired connections (telephone networks, TV cable networks, ISDN, DSL, Internet fixed line, etc.), via wireless connections (wireless local loop, satellite, radio [in particular DVB-H], mobile telephone networks [GSM, CDMA, HSCSD, GPRS, 3G, UMTS], wireless LAN) or in the process of synchronization with other electronic devices (e.g. via cable and network connection, Bluetooth or infra-red) and on the basis of various transmission standards and presentation formats (e.g. TCP/IP, SMS, MMS, EMS, PMS, smart messages, DVB, HTML, WML, cHTML, e-mail) in all online services, data and (tele-) communications networks, in particular the Internet.
The client is to be able to use the idea fully and exclusively on a permanent basis and to exploit it commercially, in particular for advertising purposes and across all media.
4.4 In addition to, and above and beyond, the above provisions, it is agreed that, if the creative has created a computer program, only the client will be entitled to exercise any proprietary rights to the computer program after the transfer of rights by jovoto.
4.5 Following the transfer of rights, the client is entitled at its own discretion and without the separate agreement of the creative, to transfer the rights listed in section 4 to third parties or to allow third parties to exercise such rights irrespective of whether in the original form or in an edited form. This applies independently of the content and scope of the license terms agreed with the relevant third party, i.e. irrespective of whether through the transfer of the exclusive right of use or through the assignment of individual or several fully inclusive or non-exclusive rights of use limited with regard to content and/or time and/or space.
4.6 The above provisions also apply in the event that the idea, and all works, performances and activities contained in the idea, have been combined with third-party protected material. If a collective creative work with shared copyright ownership has resulted from the combination of the works with other protected material, the creative herewith agrees to the exploitation of the collective work to the extent specified by the above provisions.
4.7 The use of material covered by open access or open content licensing terms for the development and creation of the project idea is prohibited, irrespective of whether this is done by the creative or third parties. The creative warrants that he will not use such material.
4.8 The idea will also remain visible on the platform even after being sold to the client. It will however be marked as 'sold (e.g. as 'Client's Choice').
4.9 The creative waives his right to be named as author in the exploitation of the idea. jovoto will work towards persuading the client that the creative's authorship should be acknowledged as author and that he should be named as such in accompanying material in cases where it is not possible to achieve such mention on specimens of the work.
4.10 Where the creative has used material and/or works of third parties in the course of developing and submitting the idea (for example photographs from publicly accessible databases, fonts, sample texts or similar), he also grants to jovoto and to the client rights of use to this third-party material and to these third-party works in accordance with the provisions of section 4.10. The sole exception to this are those parts of the idea that have been identifiably used for illustrative purposes and are marked as such components used solely for illustrative purposes and are explicitly titled as "SAMPLE" or "SPECIMEN" in the idea. Third-party materials and third-party works that are not marked as such will be treated as if they were the creative’s own works.
4.11 The condition precedent for the granting of rights in accordance with section 4 will be deemed to have been met when the client has made the decision to acquire the rights to an idea of the creative as specified in section 4, the client has informed jovoto of this in writing and jovoto has accordingly informed the creative in writing. jovoto will grant the license rights to the idea to the client immediately after the condition precedent becomes effective and the creative has been informed.
4.12 jovoto will immediately inform the creative in writing in cases where the client desires a direct license of rights from the creative. The creative and the client can then reach an agreement on the scope of the rights granted – if necessary with jovoto as mediator. jovoto will provide a specimen agreement on request.
5. Creative's Guarantee, Indemnity
5.1 The creative guarantees that he has developed all ideas, and works associated with the ideas together with the individual elements, himself, and that he is the owner of all rights that are necessary in order to grant the rights of use in accordance with sections 3 and 4 and to meet any other applicable conditions. The creative also guarantees that his ideas and associated works are free of any third-party rights.
5.2 The creative also guarantees that he will not submit or offer any content, in particular ideas or work samples, that encroach upon the rights of third parties or where content is ineligible in accordance with the above provisions. The creative must check whether his ideas and the associated works infringe the rights of third parties. Indications for such contractual infringements are given when, in particular,
5.2.1 Works subject to copyright, e.g. graphics, videos, photos or text (even when edited or alienated, unless the original can no longer be identified), are used that were not created by the creative himself;
5.2.2 The ideas contain performances subject to copyright or related rights such as live recordings of concerts, plays, circus performances, etc., or parts thereof, or include other performances protected by other related rights such as television programs (including opening and closing sequences);
5.2.3 Third parties have collaborated on the production of the content in such a way that they are able to acquire ancillary copyright, for example for recording, direction, editing, sound engineering, camerawork, etc. unless the persons in question have agreed to the exploitation of the idea created with their collaboration on the platform;
5.2.4 The content includes personal or other sensitive information about individuals or groups of people, unless the necessary consent and/or exploitation rights have been obtained by the creative;
5.2.5 Third parties are portrayed in photographs or videos in such a way that they play a major role in terms of their significance for the photo/video, unless the creative has obtained their explicit consent to the scene and to the exploitation of the results on the platform.
5.3 The creative also guarantees that he is not prevented by any contract of employment or other such agreement from contributing the relevant idea and participating with it in a project.
5.4 The creative will indemnify jovoto from any claims that third parties may assert against jovoto for infringement of their rights as a result of the ideas submitted by the creative. jovoto will inform the creative of any such assertion in writing immediately. The creative will make every effort to support jovoto in preparing a suitable defense. The creative will assume all costs incurred by jovoto in this connection, including reasonable costs for a legal defense. The creative is entitled to prove that the actual costs incurred by jovoto were lower than those claimed.
5.5 The same applies in the event of claims asserted by third parties when the creative infringes legal positions of third parties, in particular trademark rights or personal rights, or other legal provisions (such as prohibitions contained in the Act Against Unfair Practices – UWG) through the subject of the content, irrespective of the authorship thereof.