Terms and Conditions
Terms and Conditions for Marketing Projects
1. Area of application
1.1 The following General Terms and Conditions (hereinafter “GTC”) apply to all contracts concluded between the respective local We Are Era entity (hereinafter „We Are Era”) and the client (hereinafter „Contractual Partner”) (We Are Era and Contractual Partner hereinafter referred to collectively as the “Parties”) on the performance of services as part of marketing projects, in particular in the area of influencer marketing (hereinafter referred to as “Project” or “Campaign”). These GTC cover all primary and secondary services.
1.2 We Are Era reserves the right to adjust these GTC from time to time. The most recent version is the one valid for the contracted performance of services. If the adjustments include significant changes, which affect the rights and duties of the Contractual Partner, We Are Era shall notify the Contractual Partner before the change takes effect by means of appropriate methods, for example, via the website of by email. Unless stated otherwise, updates of the GTC shall become effective on their publication on the website. The Contractual Partner is aware that the further performance of services, after an update of these GTC has been published, means that the Contractual Partner voluntarily declares its agreement to the binding applicability of the updated GTC.
2. Object of agreement and conclusion of the contract
2.1 The object of the agreement is the service respectively defined in the submitted quote (hereinafter referred to as “Quote”). The Quote includes in particular details as to the kind and scope of the services, the performance periods, and the consideration to be paid by the Contractual Partner. If duties of the Contractual Partner to cooperate should be required for the implementation of the Projects, these will also be included in the Quote. The Quote will be submitted in writing (email is sufficient).
2.2 By acceptance of the written Quote, the contract between We Are Era and the Contractual Partner will be concluded on the basis of the terms stated in the Quote and its acceptance and with inclusion of these GTC. The acceptance of the Quote shall be declared in writing (email is sufficient).
2.3 If the Contractual Partner itself should be contracted by a customer (hereinafter referred to as “Customer”) for the implementation of the Campaign, We Are Era shall take this into account and, in particular, include the products and service of the Customer in the Campaign insofar as they are part of the Quote. However, the party contracting with We Are Era, which has all related rights and duties, is the Contractual Partner. The Contractual Partner shall ensure that the requirements and wishes of the Customer are communicated in an appropriate manner so that We Are Era are able to implement them.
2.4 If the object of the agreement is the performance of services by one or more influencers or other persons, who command a certain presence in the media based on their publicity, the validity of the contract shall be subject to the condition precedent of the agreement by all involved influencers or other persons. We Are Era shall inform the Contractual Partner of this agreement as soon as it has been received (email is sufficient). The condition shall be deemed fulfilled only from the date on which the notification is received.
2.5 Insofar as We Are Era have determined certain key indicators such as, in particular, gross followers, impressions or reach in the Quote, these shall be subject to the condition precedent of confirmation from the involved influencers.
2.6 It remains reserved for We Are Era to contract third parties for the performance of its services. The agreement of the Contractual Partner is not required for this purpose.
2.7 Explicit provisions in the Quote or in the acceptance of the Quote, which differ from these GTC, shall take priority.
The terms contained in these GTC and in the Quote have the meanings defined below.
3.1 Gross Followers: “Gross Followers” means the number of followers per social media channel or in reference to all channels of the influencers, as determined in the Quote and as at the date of the Quote. Gross Followers shall become part of the contract only if this is expressly stated in the Quote.
3.2 Content Plan: “Content Plan” is a schedule and content summary, which is drafted after the joint signing of the contract by We Are Era and the Contractual Partner, wherein the services to be performed by We Are Era and the influencers are defined in more detail. The Content Plan can also include the dates and periods of the publication of the services. If defined in the Quote, the Content Plan shall become part of the contract upon the binding commitment of the involved influencers. This also applies to potentially included dates of publication. Deviations from the Content Plan are possible at any time, but they require the agreement of We Are Era, the Content Partner, and the influencer.
3.3 Impressions: “Impressions” means the frequency of how often a content is shown to a user. The measurement of Impressions depends on the concrete content, the corresponding media type and the requirements of the social media channels.
3.4 Content: “Content” means the materials to be realised, which are named in a Quote of We Are Era. Contents may be photos, videos, text messages or contributions, also in combination with or entirely as a photo or video, product placements in editorial formats, sponsor references, promotional videos or advertisements. Also other services, which are performed by the influencers or in collaboration with them and which are enabled, for example, by the technical functions of the social media platforms, are understood to mean Content for the purposes of these GTC.
3.5 Campaign Period: The “Campaign Period” is the span of time named in the Quote of We Are Era, during which the agreed services or parts of them are performed, in particular published or made otherwise accessible. The Campaign Period is stated in the Content Plan.
3.6 Customer Content: “Customer Content” means Content (e.g. trademarks, graphics, videos, music, illustrations and products of the Contractual Partner, etc.), which is made available or forwarded to We Are Era by the Contractual Partner for the creation of the Content.
3.7 Posting: “Posting” means the publication of the Content and also other messages, contributions and similar services for drawing attention by the influencer on social media channels or other digital platforms.
3.8 Reach: “Reach” means the total number of the actually achieved individual contacts with users per Posting. The Reach measurement is dependent on the concrete Posting and the requirements of the social media channels. Access to the data giving information on Reach cannot be granted in all cases.
3.9 Social Media Channels: “Social Media Channels” are the channels and/or profiles of the influencers named in a Quote of We Are Era on the websites and/or mobile apps of the services „YouTube“, „Facebook“, „Instagram“, „Twitter“, „Twitch“, „TikTok“, „Snapchat“ or similar platforms and services.
4. Performance of services
4.1 We Are Era shall perform the services contained in a Quote. The way and manner of the service performance shall be at the discretion of We Are Era. If agreed in the Quote, the services shall be performed with the contribution of influencers. If services shall be performed for shooting videos, filming or other production works with the involvement of influencers, We Are Era shall ensure that the influencers are available for the number of shooting or production days named in the Content Plan. Unless agreed otherwise in the Quote, We Are Era shall conclude contracts with all participants directly on its own. The Campaign Period, the number of services and the basic content of the services are defined in the Quote as well as in the Content Plan. The Content shall be produced consistent with the quality that is customary in the market. If the Contractual Partner wants the implementation to be of higher quality or conform to different technical specifications, this shall be done only if this is stated in the Quote. This shall apply also and in particular to special forms of use and publication.
4.2 The Contractual Partner shall ensure that all information required for the service performance is received on the dates agreed between the Contractual Partner and We Are Era. If the involvement of the Contractual Partner’s Content or Customer Content should be required for the service performance, these shall be transferred by the Contractual Partner by the dates requested by We Are Era. We Are Era shall not be held responsible for the consequences if the transmission is not on time.
4.3 All services of influencers shall be organised and coordinated by We Are Era. We Are Era shall also monitor the compliance with the legal regulations and the rules of the social media platforms by the influencers. Liability of We Are Era for any violations of the aforementioned regulations and policies is excluded, however. We Are Era shall ensure in particular only that the publication, the Posting and all services for drawing attention by the influencer as agreed in the Quote are in accordance with the Content Plan. Postponements or changes shall be notified on time to the Contractual Partner.
4.4 If provided in the Quote, We Are Era shall also perform all required services relating to the production of the Content. In addition, the development, the actual production and post-production can also be included in this. We Are Era may freely decide how to perform all production-specific services. We Are Era shall decide at their own discretion whether individual or all production services will be performed by subcontractors. If production services are performed by service providers other than We Are Era at the Contractual Partner’s request, the contract shall be concluded and the invoicing be issued in the way as determined in the Quote.
4.5 If, due to the kind of the type of the service, an acceptance procedure comes into question, We Are Era shall make Content that are ready for acceptance available to the Contractual Partner for the acceptance procedure after they are completed. Unless defined otherwise in the Quote, the Contractual Partner shall have overall two (2) opportunities to notify We Are Era of change requests regarding the respective Content. Each change request shall be notified to We Are Era in writing within two (2) working days from receipt of the Content (email is sufficient). Otherwise, the Content will be deemed accepted and be published on the date named in the Content Plan. Where the change requests relate to changes that can be made in the course of post-production (different cut, effects, use of previously produced film material, etc.) or changes, which relate to an inadequate and deviating implementation by the influencer of the requirements that have been determined in the briefing, We Are Era shall make these changes without additional costs for the Contractual Partner, provided that they represent only minor additional expense, or ensure that the influencer will make these changes. We Are Era shall have a unilateral right of to decide regarding the evaluation of the expense. Where the requested changes are associated merely with a delay in time and/or with not inconsiderable additional effort, in particular if a repeated production of the Contents or more elaborate adjustments in the course of post-production are required, We Are Era shall inform the Contractual Partner of the expected delay and/or the additional expenses that are expected to arise in the process. Only upon a release given for this and with a cost assumption declared by the Contractual Partner will We Are Era implement the requested changes. The additional expenses shall be borne by the Contractual Partner without delay and against regular invoicing. We Are Era shall not be liable for any delay in time resulting from this.
4.6 Advertising: If the services to be performed are advertising videos, promotional posts or other marketing Contents, We Are Era shall ensure that the Content will be published in the agreed upon social media channels, after release is granted by the Contractual Partner, ensuring further that they will be accessible during the Campaign Period on the social media channels named in the respective Content Plan. The respective publication dates for the Content are defined in the Content Plan. Moreover, the Contractual Partner acknowledges with agreement that We Are Era and/or the influencers are obligated according to the respectively applicable statutory provisions to refer to the advertising character of the Content, in particular by means of a corresponding unmistakable identification as advertising. We Are Era does not accept any liability for deletions or blockings of Content, which are initiated by third parties and not based on rights infringements that are within the responsibility of We Are Era and/or the influencer.
4.7 Product placements: Insofar as the services to be performed are product placements, the Contractual Partner acknowledges with agreement that product placements are subject to legal regulations and hereby waives taking influence over the ways and manner of the placement of the Contractual Partner’s or Customer’s products that are the objects of the contract or interfering with the editorial responsibility and independence of We Are Era and/or the involved influencer. The Contractual Partner also acknowledges with agreement that We Are Era and/or the influencer may be obligated according to the respectively applicable legal regulations to discharge duties under trademark and advertising regulations as relates to the Content. This applies in particular to the duty to identify in a suitable place that the Content is implemented with the support from the Contractual Partner and that they are product placement. This can be done, for example, by displaying the “P” symbol and the wording “supported by product placements.”
4.8 Sponsoring: Insofar as the services to be performed are sponsoring, the Contractual Partner acknowledges with agreement that the sponsoring is subject to legal regulations and hereby, on this day already, waives taking influence over the Content and publication or programme placing of a sponsored Content in such a manner that the editorial responsibility and independence of We Are Era and/or the involved influencer are impaired. For sponsoring, We Are Era or the influencer shall point out the financing by the Contractual Partner or its Customer clearly in all reasonable brevity and in an appropriate manner, in accordance with the respectively currently valid legal regulations, for example, in the beginning or at the end of the Content. Besides or instead of the name of the Contractual Partner or its Customer, also the company logo or a trademark, another symbol of the Contractual Partner or its Customer, a reference to Contractual Partner or Customer products or a corresponding differentiating sign can be displayed.
4.9 Music: If Content includes music, We Are Era shall use exclusively music for which the required rights of use can be acquired and which are not held by copyright collecting societies (in particular German Society for musical performing and mechanical reproduction rights (GEMA)). Should music be used on request of the Contractual Partner or its Customer, whose rights of use are held by copyright collecting societies, the Contractual Partner itself shall satisfy the claims for remuneration of the copyright collecting societies.
4.10 If the Quote so defines, We Are Era shall provide the Contractual Partner with reporting and/or interim reports on key indicators such as Reach, Impression and potential other key indicators at defined intervals in the Campaign Period. The types of key indicators are determined in the Quote.
5. Grant of use rights
5.1 We Are Era grants the Contractual Partner the rights of use as defined in the Quote. If agreed in the Quote, We Are Era shall grant the Contractual Partner in particular the right to make the Content publicly accessible and take advantage of all forms of exploitation relating to it, and also transfer these rights to third parties in particular such as the Customer. According to the provisions of the Quote, the rights are granted as exclusive or non-exclusive rights for the Campaign Period or beyond, locally limited to the territory of the Federal Republic of Germany or locally unlimited, and limited to certain media or without limitation in this respect. If agreed in the Quote, the Contractual Partner shall be entitled in particular to use the Content within the limits of the purpose of use, as defined in the Quote, for the implementation of the Campaign. Insofar as agreed, this shall include the right to reproduce, replay, render publicly, provide public access to and disseminate Content in full or in parts at its own discretion personally by itself or through third parties in connection with the Campaign. Where agreed, in particular the rights to provide public access, public rendition and retrieval shall be transferred, each independently from the type/form/channel/scope of the transmission, exploitation or storing, and independently from the reception equipment and the rights relationship with the end user.
5.2 To the extent it is determined in the Quote, the Contractual Partner shall be granted rights, including the right of further transfer to third parties, to integrate the Content and Postings in its own Social Media Channels, share them, link to them or publish and disseminate them in another related manner. This right is granted for the Campaign Period or beyond. A publication in the aforementioned sense, however, requires the prior written release from We Are Era (email sufficient).
5.3 Further rights to use the Content beyond the ones expressly named in the Quote of We Are Era shall not be granted to the Contractual Partner and/or its Customer. The Contractual Partner and its Customer shall be permitted to use Content, in particular video material, beyond the extent agreed in the Quote, only upon explicit written permission being given by We Are Era and, if applicable, an accordant further agreement on remuneration. We Are Era are not obligated to grant such agreement.
5.4 If the Contractual Partner or the Customer exceed the scope or the kind of the granted rights of use as defined in the Quote, the Contractual Partner shall be responsible for any resulting proprietary rights infringements in consequence of this and indemnify We Are Era from and against claims of third parties, including influencers, on first request and refund the costs for the adequate legal defence.
5.5 If the Contractual Partner provides We Are Era with Customer Content and/or Content of third parties (e.g. recordings of musical performances, photos, signs, texts, videos, etc.), which are used by We Are Era within the scope of the contractual cooperation, the Contractual Partner shall indemnify We Are Era and the influencers from all claims brought by third parties in connection with the use of the Customer Content, on first request and refund the costs for the adequate legal defence. If the Contractual Partner does not notify of any limitation and/or obligations (e.g. requirements to give name credits) in writing, the rights to the Customer Content shall be granted to We Are Era without limitations in time, region and content, whereas non-exclusively. Any Content produced by using Customer Content can be used without limitations by We Are Era and/or the influencers, even after the termination of the contract, if no limitations have been notified when they are made available for use.
5.6 Any use of ideas, presentations, concepts or other documents drafted by We Are Era and/or the influencer in the course of the collaboration by the Contractual Partner beyond the scope of the respective Quote is prohibited. These are the intellectual property of We Are Era or the influencers and subject to the applicable copyright laws. Ideas and rough ideas can only be realised if a prior contractual agreement is concluded with We Are Era. Reproduction in full or in part and any transfer to third parties is prohibited. The Contractual Partner shall be liable for the damages resulting in case of a prohibited use or transfer to third parties.
5.7 Irrespective of the rights to be granted to the Contractual Partner, We Are Era shall have a right to use the produced Content or their components for house advertising, thereby entitling We Are Era to refer to the Content or the Campaign in announcements or presentations.
6. Remuneration and terms of payment
6.1 As consideration for the fulfilment of the services to be performed by We Are Era or the influencers under these GTC and the Quote, and the transfer of rights according to Section 5, the Contractual Partner shall pay to We Are Era the fee defined in the Quote plus the value added tax.
6.2 The services shall be invoiced according to the due dates set in the Quote. Otherwise, the services shall be due when they are performed by We Are Era and can be invoiced, respectively, by We Are Era.
6.3 The respective invoice total shall be due for payment without deductions at the latest within fourteen (14) working days after the invoicing.
6.4 If the Contractual Partner is in delay with a payment, We Are Era shall be entitled to suspend the further continuation of the Campaign agreed under the project contract until the receipt of payment and make it contingent upon the payment of an appropriate advance on the remuneration to be expected. The Campaign Period shall then extend accordingly. We Are Era shall also have a right to withhold the already produced Content on grounds of default. A right of withholding also applies in all cases of a significant deterioration of the Contractual Partner’s financial situation. We Are Era have the right to claim interest in the amount of 9 percentage points above the base interest rate. Claims of further damages remain expressly reserved. The Contractual Partner’s right to prove a lesser default damage remains unaffected from this.
6.5 Claims of the Contractual Partner based on incorrect invoices shall lapse by limitation after one (1) year, calculated from the end of the year in which the incorrect invoice from the Contractual Partner was received. This does not apply to damage compensation claims based on incorrect invoices in result of gross negligence or intent. In this respect, the statutory limitation periods apply.
6.6 If agreements on bonuses, discounts and rebates of any kind exist between the Contractual Partner or companies affiliated with the Contractual Partner, on the one hand, and We Are Era or companies affiliated with We Are Era, on the other hand, these shall not apply to this contract. This does not apply if such agreements have been expressly negotiated.
6.7 The Contractual Partner shall have rights to offset payments only if its counterclaims are established as final and absolute, or if they are uncontested or acknowledged by We Are Era. Furthermore, it is entitled to claim a right of withholding only insofar as its counterclaim based on the same contractual relationship is established as final and absolute or if it is uncontested or acknowledged by We Are Era.
7. Term and termination
7.1 The contract shall take effect upon the signing of the Quote submitted by We Are Era and end on expiration of the Campaign Period named in the Quote or upon the end of the grant of rights according to the respective Quote and payment of the contractual remuneration according to the Quote in connection with Section 6 of these GTC, whichever is the later date, without requiring a notice of termination. The right of extraordinary termination is precluded.
7.2 Both Parties’ right of extraordinary termination of the contractual relationship for good cause remains unaffected.
7.3 The Contractual Partner shall be granted the right to withdraw from the signed contract up until the start of the Campaign. In the event the right of withdrawal according to sentence 1 above is invoked, We Are Era shall have the right to be refunded its costs, which shall be proven on the basis of a discontinuation calculation that also considers expenses, which have been incurred by We Are Era in connection with the implementation of the entire Campaign. If We Are Era does not prove the costs based on a discontinuation calculation, the following calculation of the costs to be refunded by the Contractual Partner shall apply: (i) in case of withdrawal up to nine (9) weeks before the start of the Campaign, 25% of the agreed remuneration, (ii) in case of withdrawal up to six (6) weeks before the start of the Campaign, 50% of the agreed remuneration, (iii) in case of withdrawal up to six (6) weeks before the start of the Campaign, 75% of the agreed remuneration and in case of withdrawal at any later point time, the full agreed remuneration. The withdrawal shall be notified in writing (email is sufficient) to We Are Era.
8. Warranty and liability
8.1 We Are Era generally do not assume any warranty, unless expressly determined otherwise in the Quote, for certain key indicators such as, in particular, Reach and Impressions. This also applies to the number of so-called “followers”, “subscribers” or “likes” on the Social Media Channels of the contributing influencers.
8.2 If so agreed in the Quote, We Are Era shall apply their best efforts to reach the key indicators determined in the Quote. However, We Are Era shall not be held responsible for the promotional or communicative success of a Campaign.
8.3 Insofar as measurable and quantified key indicators such as, in particular, Reach or Impressions are agreed in the Quote, the service performance in accordance with the contract will only not be given anymore from a shortfall of more than 25% below the key indicators. After the performance of the service, the same circumstances shall be taken as the basis for the measurement of the key indicators, which were taken as the basis of the prognosis of the key indicators in the Quote. If these circumstances have changed, the Contractual Partner cannot claim that the performance of services was not in accordance with the contract in case of a shortfall. We Are Era has the right to compensate a shortfall during a certain period by outperforming during another Campaign Period. In that case, a performance of services in accordance with the contract will be given. In all cases, it remains reserved for We Are Era to avoid shortfalls by providing other services to be agreed with the Contractual Partner.
8.4 Any liability of We Are Era shall be excluded for any damages directly related to this circumstance, if the Contractual Partner or its Customer should take influence in any way on the implementation of their Content affecting their legitimacy, in particular, as concerns their permissibility under competition and advertising regulations. The same applies to actions by the Contractual Partner or Customer which constitute interference with or infringement on the editorial autonomy and independence of We Are Era or the influencers.
8.5 The Contractual Partner shall be liable to We Are Era and the influencers for losses incurred by them due to the illegitimacy of the Content and Postings under the law, in particular under competition and advertising regulations, which result from actions taken by the Contractual Partner or Customers, as well as those described in Section 8.3.
8.6 We Are Era shall not be liable for losses due to force majeure or technical failures, which fall within the area of responsibility of other companies, in particular social media platforms (which shall also apply, for example, to the transmission channels of telecommunications companies or failures at access providers). Force majeure is given in particular if We Are Era is unable, in consequence of a circumstance outside of their control, to perform the contractual services permanently or temporarily because circumstances arise, which were not anticipated on the signing of the contract or circumstances occur that are outside of the sphere of their control, such as war, rebellion, embargo, terrorism, natural disasters, epidemics and pandemics (also such resulting from COVID-19). For the rest, We Are Era shall be liable for damages – regardless of the legal reason – only if We Are Era, their legal representatives or vicarious agents caused the damage through intent or gross negligence, or if a duty was breached through intent or gross negligence. Essential contractual duties are such duties whose fulfilment enables the regular execution of the contract in the first place and whose fulfilment the Contractual Partner may rely upon. In the event of a breach of duties essential to the contract, the liability of We Are Era for compensation shall be limited to the predictable damage that is typical for the contract.
8.7 The foregoing liability exclusions or liability limitations shall not apply in case of damages to life, body or health. Liability for indirect damages, in particular lost profit, is excluded.
9.1 We Are Era and the Contractual Partner undertake to treat all business and trade secrets, know-how and other information as confidential, which are disclosed by the respective other Party in connection with this Marketing Contract or otherwise and which are earmarked as confidential or which are recognisable to be such, for the duration and beyond the termination of this Project Agreement.
9.2 This confidentiality undertaking shall not apply to confidential information, which (i) was publicly known at the time of its disclosure or which has become publicly known thereafter without a violation of the foregoing provisions being a reason contributing to this, (ii) is disclosed by the disclosing party on an expressly non-confidential basis, (iii) was in the legitimate possession of the receiving party prior to its disclosure, or (iv) is transferred to the receiving party thereafter by a third party without violating a confidentiality undertaking. The burden of proof for such an exception shall be on the Party invoking it.
9.3 After the end of the term of this Project Agreement, each Party shall return all documents to the complete extent, which it has received from the other Party in the context of this Project Agreement or destroy all documents received from the Party upon request by this Party.
10. Data protection
10.1 If the Parties come into contact with personal data in the course of the performance of the contract, or if such data comes to their attention or is transferred to them or made accessible to them in any other way, they shall be obligated to treat the personal data as confidential.
10.2 We Are Era and the Contractual Partner shall create the permissibility of the processing of personal data within their respective sphere of responsibility (Art. 6 GDPR) and assure the security of the data according to Art. 32 GDPR.
10.3 The Parties agree that the processing of personal data shall take place under separate responsibility. Each Party shall independently ensure, in particular, the rights of data subjects (Art. 15 to 22 GDPR) and the duties to provide information (Art. 12 seqq. GDPR) within their own area of responsibility. Regarding the aforementioned duties to provide information, the Parties agree that they will inform data subjects of a transmission to the other Party according to Art. 14 GDPR, so that Art. 15 (5) GDPR shall apply to the receiving Party.
10.4 The Parties are authorised to transfer data to third parties as defined by Art. 4 (10) GDPR and to service providers as defined by Art. 28 GDPR, if and insofar as this is required for the performance of their respective duties under this Agreement.
10.5 The liability agreements according to the service contract and these GTC shall apply to the data processing as relates to the service performance.
10.6 This obligation shall also continue to apply after termination of the Project Agreement.
11. Good conduct
The Parties undertake during the term of the contract and up to three (3) years after termination of the contract not to make any negative statements in public about the other Party, its bodies, employees, products, and/or services or the contractual collaboration. The Contractual Partners undertake to equally protect the influencers.
12. Final provisions
12.1 Every contract between We Are Era and the Contractual Partner comprises the Quote accepted by the Contractual Partner, these GTC and, if agreed in the Quote, the Content Plan, which shall then be an integral part of the contract.
12.2 The contract shall replace all prior written or verbal agreements between the Parties. Changes and amendments to the contract including these GTC require the written form. This also applies to the waiver of the requirement of the written form itself. If provisions in a Quote from We Are Era contradict the provisions contained in these GTC, the provisions in the Quote shall take precedence.
12.3 All services of We Are Era are performed exclusively on the conditions of these GTC. The GTC of the Contractual Partner shall not apply even if the Contractual Partner expressly refers to their applicability. On acceptance of the Quote from We Are Era, the Contractual Partner irrevocably waives its own GTC and recognises these GTC.
12.4 Voidness or invalidity of one or more provisions of the contract comprising these GTC and the Quote shall not result in the voidness or invalidity of the entire contract. Instead, the Parties agree to replace a void or invalid provision by such a provision, which facilitates the economic purpose of the contract in a legally permissible manner. This applies analogously in the case that the Project Agreement makes an omission in provisions.
12.5 The place of jurisdiction for all disputes arising between the Parties from the contractual relationship is the place of origin of the respective contractual We Are Era entity to the legally permissible extent. The local law of the place of origin of the respective contractual We Are Era entity applies to this contract, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Terms and Conditions for Online Advertising
1.1 These General Terms & Conditions (hereinafter referred to as „T&C“) shall apply to all contracts concluded between the respective local We Are Era entity (hereinafter referred to as „We Are Era“) and its customers (hereinafter referred to as “Client”) (We Are Era and Client hereinafter jointly referred to as “Parties” and each a “Party”) for the provision of online advertising services by We Are Era. These T&C shall be appliable on all online advertising services provided by We Are Era to the Client as described in the applicable order form signed by both Parties (T&C together with the order form shall hereinafter be referred to as an “Agreement”).
1.2 All online advertising services of We Are Era are provided exclusively under the terms of these T&C. These T&C shall constitute an integral part of the Agreement between We Are Era and the Client. If any provisions in these T&C are in conflict with an applicable order form, the provisions in the order form shall have precedence with regard to the interpretation.
1.3 In any event, individual agreements made with the Client shall have priority over these T&C so far as the content of the individual agreements was set out in writing or confirmed by We Are Era in written or text form (e.g. via e-mail).
2. SERVICES RENDERED BY WE ARE ERA
2.1 We Are Era operates and markets, inter alia, channels produced by itself or third parties containing audio-visual and other content (hereinafter the “Channel(s)”) on third party online platforms and websites such as YouTube, Facebook or alike as well as on its own online platforms and websites and online services, mobile services and apps connected with these platforms (hereinafter jointly referred to as the “We Are Era Network”).
2.2 We Are Era offers Client’s media solutions (such media solutions hereinafter referred to as “Advertising Material”) on online platforms, websites, apps, in online-services and mobile services of the operators within and outside the We Are Era Network by using two types of Ad Servers (Google Ad Manager and Google Ads) for the purpose of advertising and marketing the Advertising Material. The operators of the respective platforms, websites, apps, services and offers on the internet and in mobile networks within and outside the We Are Era’ Network shall hereinafter be referred to as “Providers”.
3. SPECIAL PROVISIONS FOR MEDIA AGENCIES
In the case of orders from agencies, acting on the basis of an assignment of an advertising customer, precise details of such advertising customer must be provided (name, full address and contact details, VAT ID). We Are Era has the right to request proof of mandate from the agency for its assignment for the advertising customer. In this case, the agency remains the contractual party and all invoices shall be sent to the agency.
4. PROVISION OF THE ADVERTISING MATERIAL AND OTHER FORMS OF COOPERATION BY THE CLIENT
4.1 The Client shall provide We Are Era with all Advertising Material, the tracking codes for the Advertising Material as well as all other information, content, documents and explanations, which We Are Era requires from the Client for the provision of its services and/or whose provision was agreed as part of the order and according to the obligations set forth in the We Are Era Tech-Specs: https://unitedscreens.com/tech-specs/. Unless otherwise agreed, the Client shall provide We Are Era electronically at least five (5) business days before the agreed campaign launch with the Advertising Material, the target URLs and any other information required for the integration of the Advertising Material and for making them available to the public.
4.2 In the event that the Client fails to meet its obligations or its duty to cooperate under this clause, especially within the agreed timings, We Are Era shall not be responsible for any resulting delays or defective performance of the inability to render its services as a result of the Client’s actions. We Are Era shall be entitled to refuse performance of the affected services until the Client cooperates as required. Any failure of obligations or untimely behavior by the Client shall not affect We Are Era right to remuneration under an Agreement.
5. RESPONSIBILITIES OF THE CLIENT
5.1 The Client shall ensure that all Advertising Material comply not only with the requirements specified by We Are Era, but also with all currently applicable advertising guidelines of the Providers of the Advertising Material booked by the Client, e.g. the advertising guidelines of YouTube, Facebook or other platforms.
5.2 The Client shall also ensure the lawfulness and compatibility with legal regulations of the Advertising Material (including the content and advertising messages comprised therein) provided by it for the services to be rendered as well as the content presented on the target URLs. . The responsibility for the Advertising Material’s lawfulness and compatibility with legal regulations shall rest entirely with the Client. Verification of the Advertising Material’s lawfulness, compatibility with legal regulations and compatibility with the Providers’ advertising guidelines is not covered by the scope of services provided by We Are Era.
5.3 The Client shall assure We Are Era that all Advertising Material and its contractual use by We Are Era and the Providers is not illegal or contrary to legal regulations and/or in violation of third-party rights. In this respect, the Client shall indemnify We Are Era against any third-party liability claims.
5.4 Within the scope of the campaign, the Client may only gather and use user data in accordance with the currently applicable data protection regulations.
6. REJECTION OF ADVERTISING MATERIAL, INTERRUPTION OF ADVERTISING PLACEMENT
6.1 We Are Era shall be entitled to refuse the placement of Advertising Material if Client’s Advertising Material does not meet the agreed requirements and specifications specified by We Are Era and all currently applicable advertising guidelines of the Providers. In this case, the Client shall as soon as possible, and not later than within two (2) days, provide new Advertising Material that meets the respective requirements and specifications.
6.2 In case of We Are Era’ reasonable suspicion that the Advertising Material provided by the Client includes content which is illegal or contrary to legal regulations and which in particular violates third party rights, We Are Era shall be entitled to reject such Advertising Material or interrupt the respective campaign until the Client has resolved the matter conclusively or the Client has been able to dispel such suspicions to the satisfaction of We Are Era.
6.3 We Are Era would also like to point out that individual Providers, e.g. YouTube or alike, reserves the right to reject Advertising Material and campaigns at their own discretion. We Are Era has no influence on such decisions. In case of such a rejection, of a campaign or Advertising Material, for which neither We Are Era nor the Client are responsible, both the Client and We Are Era shall be entitled to withdraw from the part of the Agreement for which the specific Provider was booked in regard to the Advertising Material. In respect of the remainder of an already started campaign, the order shall only be upheld if the Client corrects the Advertising Material in such way that it can be accepted by the Provider.
7. PLACEMENT AND SUPPLY OF ADVERTISING MATERIAL
7.1 We Are Era shall supply the Client’s agreed Advertising Material to be integrated in the Providers’ platform or if agreed between the Parties the Advertising Material shall be provided by the Client directly to the Provider. The Advertising Material shall be published by the Providers in the agreed platform for the agreed campaign period and made accessible to the users of the agreed platform upon individual demand. In the event that no end of a campaign period has been agreed, the Advertising Material shall be supplied until the agreed target volume of the campaign has been reached. Deadlines and dates for the campaigns shall only be binding if they have explicitly been agreed as binding.
7.2 Unless a restriction of the campaign to certain Channels or certain Advertising Material has been agreed between the Parties, We Are Era shall select the Channels and the Advertising Material at their equitable discretion, taking into account the Client’s specified campaign objective. We Are Era shall be entitled, but not obliged, to also advertise outside the We Are Era network, taking into account the campaign objective specified by the Client. Unless otherwise agreed in the order, We Are Era shall not owe the Client any specific placements of the Advertising Material or the delivery of a specific target volumes on a specific placement of the Advertising Material.
7.3 The Client shall be obliged to discernibly label the Advertising Material as advertisement in a suitable format complying with the currently applicable statutory requirements.
8. TARGET VOLUMES
8.1 The target volume, e.g. impressions and/or views, specified in the order for a defined campaign period, shall be considered intended, non-binding targets, unless otherwise expressly defined as binding. The respective target volume for Google Ad Manager in a defined period shall be forecasted by We Are Era based on empirical values for the booked Channels, the booked Provider’s platform, the Advertising Material and the campaign period. For the avoidance of doubt, in Google Ads target volumes cannot be forecasted.
8.2 As We Are Era has no influence on the technical provision of the platforms, websites, apps, services and offers on the internet and in mobile networks of the Providers’ platform, the respective Channel content, and user activity, the target volume may be reached ahead of time or not fully reached within the respective campaign period.
8.3 In the event that the target volume is not reached within the agreed campaign period, We Are Era shall notify the Client accordingly. At the discretion of the Client, We Are Era can – always taking into account availability at the time – (a) continue to deliver the campaign in the agreed Channel(s) and platforms within an appropriate period until the target volume has been reached or (b) deliver the campaign (alternatively or additionally) on one (or more) other Channel(s) and/or platforms within an appropriate period until the target volume has been reached. In cases where such a subsequent delivery is unreasonable for the Client due to his campaign objective or for other objective reasons, the Client and We Are Era shall find an amicable solution. The Client shall not be entitled to any other claims in case of not reaching the target volume. If the target volume is reached before the end of the agreed campaign period, We Are Era shall have the right to end the campaign and only be obliged to continue the delivery of the campaign until the end of the campaign period if the Parties have agreed an increase in the target volume and additional remuneration to We Are Era.
8.4 Even in cases where a certain target volume was agreed as binding, We Are Era shall initially be entitled, if this target volume has not been reached during the campaign period, to subsequently deliver the outstanding target volume in the manner described above within an appropriate period, which shall not be more than one (1) week. If this subsequent delivery fails or is unreasonable for the Client due to his campaign objective or for other objective reasons, clause 12.2 shall apply instead.
9. TRACKING OF DELIVERED TARGET VOLUMES
9.1 The delivery and tracking of target volumesis performed at the discretion of We Are Era via the two types of AdServer (Google Ad Manager or Google Ads).
9.2 Only We Are Era’ reporting shall be authoritative for counting and billing of the target volume delivered to the Client. Any deviating numbers of impressions and/or views, which the Client may have counted with a different Ad Server, shall only be taken into account if the Client’s numbers and We Are Era’ numbers differ by more than ten percent (10 %). In such a case, the Parties shall agree upon the authoritative quantity for the campaign.
10. POSTPONEMENT OR CANCELLATION OF CAMPAIGNS
10.1 In cases where placement of the campaign is not possible for the agreed period due to reasons for which We Are Era is not responsible, e.g. reasons for which third parties are responsible or situations of force majeure, We Are Era shall either bring forward the campaign to the next possible period or deliver it subsequently in the next possible period. We Are Era shall notify the Client immediately about any deviations required and Client and We Are Era shall find an amicable solution. In the event that the campaign cannot be brought forward or delivered subsequently within four (4) weeks before or after the agreed campaign period, the Client may either alter the booking to another platform suggested by We Are Era (subject to availability) or withdraw from the affected Agreement with immediate reimbursement of any remuneration already paid.
10.2 In the event that the preponement or postponement of the campaign is not possible within four (4) weeks before or after the agreed campaign period, We Are Era shall have the right to cancel the order and to immediately reimburse the Client any payments already made. In this case, the Client shall have no further claims.
11. MINOR CHANGES
In other respects, minor changes of the booked Advertising Material and the campaign period shall be permissible provided they do not exceed the customary extent and do not unreasonably impair the Client’s interests, e.g. by impairing the advertising impact or the campaign objective. We Are Era shall notify the Client immediately of any changes.
12. DEFECTIVE PERFORMANCE
12.1 The Client shall be obliged to check the advertising campaign immediately after the campaign launch and to notify We Are Era immediately in writing or via e-mail, at the latest seven (7) days after campaign launch, of any defects found during such a check. In the event that the Client does not notify We Are Era accordingly, the performance with respect to such discernible defect shall be deemed to have been approved by the Client. The Client must notify We Are Era immediately after discovery (at the latest within two (2) business days after discovery) in writing or via e-mail of any defects not discernible during such a check (so-called hidden defects). In the event that the Client does not notify We Are Era, performance in respect of such hidden defects shall also be deemed to have been approved by the Client. Dispatch of the notification within the prescribed period shall be sufficient.
In case third party tags have been added to the advertising campaign upon Client’s request, We Are Era is not responsible for any defective performance caused by such third-party tags.
12.2 In the event of defective performance in accordance with 12.1 above, Client shall initially be entitled to demand cure in the form of a subsequent delivery within an appropriate period of the campaign or campaign part affected by the defect. In case non-defective subsequent delivery within an appropriate period fails, the Client and We Are Era shall find an amicable solution.
12.3 Irrespective of the aforementioned provisions of this clause 12, the following shall apply to the Client’s claims on the grounds of defects or other defective performance or non-performance of agreed services, which are not rendered by We Are Era itself but third parties (in particular the delivery of the Advertising Material by the Providers): We Are Era may assign its claim vis-à-vis third parties for any defective performance – where existent – to the Client, provide it with all associated information and request that the Client initially asserts all claims directly vis-à-vis the third party. This shall also include recourse to the courts for claims against the third party, unless related to work performed deficiently or where such a procedure is not reasonable because a recourse to the courts for such a claim has no chances of success due to the circumstances of the respective case (e.g. in case of insolvency of the third party). In cases where recourse to the third party fails for reasons the Client is not responsible for, the Client may assert its claims directly vis-à-vis We Are Era, in accordance with the statutory provisions and taking into account these T&C and always concurrent with the reassignment of the claims vis-à-vis the third party.
12.4 Any claims arising from defects and other claims arising from defective performance or non-performance shall become statute-barred within one (1) year from We Are Era provision of services under an Agreement.
12.5 The Client shall have no claims arising from defects and other defective performance or non-performance, if and to the extent to which these defects, defective performance or non-performance are due to the Client’s infringement of its duty of cooperation, express instructions or requests by the Client, deficient provisions by the Client or a use of the services by the Client contrary to the Providers’ advertising guidelines.
13. GRANT OF RIGHTS AND LEGAL GUARANTEE
13.1 The Client hereby grants We Are Era – for the agreed campaign period (as well as periods for subsequent delivery and making good) – the non-exclusive, non-transferable and worldwide right to integrate the Advertising Material provided by it to We Are Era for rendering the agreed services in the agreed Channels and platforms, to publish it there and to make it accessible to members of the public and closed user groups via fixed and mobile communication networks at locations and times of their choice for simultaneous or consecutive use – on demand or as a push service –, to transmit, to send and to duplicate for the aforementioned purposes. For this purpose, We Are Era shall be entitled to grant the Providers of the platform sublicenses for the rights of use granted in this clause 13 to the extent necessary.
13.2 The aforementioned grant of rights includes in particular also the right to use the Advertising Material:
(a) including all digital and analogue transmission and retrieval methods, in particular via cable, radiocommunication, fixed and mobile satellite networks, terrestrial methods and microwaves including all processes (such as HSDPA, GPRS, UMTS, LTE, WLAN, WiMAX, ISDN, DSL, TV cable);
(b) including playback, downloading and storage on any of the users’ receivers (such as PCs, tablets, TVs, set-top-boxes, (hard disk) video recorders, mobile phones and smart phones); as well as
(c) in electronic databases of We Are Era and its sublicensees (i.e. the right to capture the provided Advertising Material in machine readable format, to store it electronically in the databases and to make it accessible to the users there).
13.3. The aforementioned grant of rights relates in particular also to the copyright and ancillary copyright in the Advertising Material, to the rights in one’s own image as well as the rights to a name, title rights, trademark rights, commercial designations and other names, indications or signs protected as indications of geographical origin.
13.4 In addition, the Client grants We Are Era and the companies affiliated with We Are Era the simple, temporary and regionally restricted right to:
(a) use the Client’s campaign data logged and anonymized by We Are Era for its own business purposes to store, process and link such data with the data of customers and use it, in particular for creating performance statistics of the We Are Era network, for analysis, control and improvements of its performance, for the prevention and detection of abuse as well as to market We Are Era’ services, We Are Era and the marketed Channels vis-à-vis third parties;
(b) to integrate the Advertising Material and campaign data into marketing material of We Are Era and its affiliated companies (e.g. as screenshots in presentations, promotional videos etc.) and to use this as part of this marketing material for marketing the services of We Are Era and its affiliated companies.
13.5 The Client guarantees We Are Era that
(a) it is the owner of the rights granted in this clause 13 and is entitled to grant these rights to We Are Era;
(b) the rights of use granted are not encumbered with third-party rights, which would impair the contractual exercise of these rights, and that the contractual exercise of these rights of use shall not violate third-party rights;
(c) it is the owner of the domain rights for the target URLs and/or is entitled to market the target URLs.
The Client hereby indemnifies We Are Era, the Channel producers and the Providers of the platform upon first demand of We Are Era against all third-party claims, to the extent permitted by law, , which these third parties make on the grounds of a culpable breach of the Client’s obligations or breach of the Client’s warranties. This right of indemnity shall also cover the costs of any legal defense required by the parties to be indemnified against such claims, including lawyer’s fees. We Are Era shall notify the Client immediately of any such third-party claims against them.
15. REMUNERATION, BILLING, TAXES
15.1 The remuneration to be paid by the Client, including any (cash) discount granted, shall be determined in the respective order between We Are Era and the Client. The agreed remuneration shall not include the license fee which may be payable to performing rights societies, e.g. STIM (sw. Svenska Tonsättares Internationella Musikbyrå) or other collective societies, for making the Advertising Material accessible online in case of using works and performances subject to copyright.
15.2 Unless otherwise agreed in the Agreement, the agreed remuneration shall be payable by the Client immediately upon completion after receipt of a proper invoice. The invoice shall be issued immediately upon end of campaign period. In case the services under the Agreement are provided via Google Programmatic Advertising, the Client agrees that the invoice will be issued directly by Google.
15.3 We Are Era shall send the Client a report within two months of the end of each campaign, which also shows the target volumes.
15.4 All prices agreed are net of VAT and shall be payable plus value added tax at the applicable statutory amount where due in accordance with the applicable regulations.
The Client shall only be entitled to offset claims of its own against payment requests by We Are Era or withhold payments to We Are Era if its counterclaims have been adjudicated as final and absolute by a court, undisputed by We Are Era or accepted.
We Are Era shall only be liable for damage arising from its willful or grossly negligent breach under the Agreement.
18. CUSTOMER REFERENCE
We Are Era shall be entitled to name the Client as its customer vis-à-vis third parties. In cases where the Client is a media agency, We Are Era shall also be entitled to name the respective advertising customer who has commissioned the agency, as a customer vis-à-vis third parties.
19. TERM AND TERMINATION OF AGREEMENT
19.1 The Agreement shall enter into force on the date when signed by both Parties and shall continue in force until all agreed services have been performed under a campaign. Notwithstanding anything herein, each Party can terminate an Agreement fully or partially up to fourteen (14) days before the agreed campaign launch.
19.2 Each Party shall have the right to terminate an Agreement with immediate effect if
(a) the Client has failed to make overdue payments within two weeks of receiving a payment reminder, or
(b) the Advertising Material provided by the Client is unlawful, contrary to public policy or violates the rights of third party and the Client does not provide We Are Era immediately after a corresponding request with unobjectionable Advertising Material; or
(c) the other Party enters into bankruptcy, receivership, liquidation or any kind of composition between the debtor and the creditors, becomes insolvent or in case of any circumstances arises that are likely to substantially affect the other party’s ability to carry out his obligations under this Agreement; or
(d) in case of a material breach by the other party of the obligations arising out of this Agreement, or in case of exceptional circumstances justifying the earlier termination.
19.3 Provisions contained in this Agreement which are expressed or by their nature and context are intended to survive the termination of the Agreement, including but not limited to, clauses 15 and 22 shall so survive such termination.
20. RESERVATION OF RIGHT OF MODIFICATION
We Are Era shall have the right to modify these T&C at any time with effect for the future. As far as Agreements already concluded, and still current, are affected by these modifications, We Are Era shall send the Client the modified T&C via e-mail at least two weeks before coming into effect. If the Client object to the modified T&C within two weeks of their receipt, the old T&C shall apply for the remaining period of the Agreement.
21. DATA PROTECTION
Insofar as the Parties come into contact with personal data in the course of fulfillment of obligations under the Agreement, or such data comes to their knowledge or is otherwise transferred or made accessible, they are obliged to treat personal data confidentially, not to process such data in an unauthorized or unlawful manner and to take precautions for appropriate security as well as accidental loss. In the event a Party process personal data on behalf of the other Party under the Agreement, the Parties shall enter into a separate data processing agreement to exclusively govern such personal data processing. Personal data may only be processed if a legal regulation permits the processing or if processing of such data is mandatory. In particular, the Parties shall observe the principles according to Art. 5 GDPR and, taking into account the technical and practical possibilities, also the principles for data security according to Art. 32 GDPR, when processing personal data, if any. This obligation shall continue to exist after termination of the Agreement. After the end of the term, the Parties will delete all personal data that became accessible to them or store it in a way that no longer allows identification.
22.1 In the event that one or more provisions of an order (including these T&C and/or any special terms and conditions) shall be or become invalid, this shall not affect the validity of the remaining provisions. The Parties undertake to replace such an invalid provision by a valid provision that corresponds with what the Parties would have agreed in good faith, taking into account the objective of the Agreement, had they been aware of the invalidity of this provision at the time of concluding the Agreement. This shall also apply to gaps and omissions in the provisions.
22.2 Any amendments, supplements and terminations of the Agreements must be made in writing to be legally effective. A waiver of the written form by the Parties must also be made in writing.
22.3 The sole place of jurisdiction for any disputes arising from or in connection with the orders (including these T&C and/or any special terms and conditions), including their effectiveness, termination and end, shall be the exclusive jurisdiction of Swedish courts, with the Stockholm District Court as the court of first instance.
22.4 The place of jurisdiction for all disputes arising between the Parties from the contractual relationship is the place of origin of the respective contractual We Are Era entity to the legally permissible extent. The local law of the place of origin of the respective contractual We Are Era entity applies to this contract, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Terms and Conditions for Productions
1. Area of application
1.1 The following General Terms and Conditions (hereinafter “GTC”) apply to all contracts concluded between the respective local We Are Era entity (hereinafter „We Are Era”) and the contractual partner (hereinafter „Contractual Partner”) (We Are Era and Contractual Partner hereinafter referred to collectively as the “Parties”) on the performance of services in the context of productions (hereinafter referred to as “Project” or “Productions”). These GTC cover all primary and secondary services.
1.2 We Are Era reserves the right to adjust these GTC from time to time. The most recent version is the one applicable for the contracted performance of services. If the adjustments include significant changes, which affect the rights and duties of the Contractual Partner, We Are Era shall notify the Contractual Partner before the change takes effect by means of appropriate methods, for example, via the website of by email. Unless stated otherwise, updates of the GTC shall become effective on their publication on the website. The Contractual Partner is aware that the further performance of services, after an update of these GTC has been published, means that the Contractual Partner voluntarily declares its agreement to the binding applicability of the updated GTC.
2. Object of agreement and conclusion of the contract
2.1 The object of the agreement is the service respectively defined in the submitted quote (hereinafter referred to as “Quote”). The Quote includes in particular details as to the kind and scope of the services, the performance periods, and the consideration to be paid by the Contractual Partner. The Quote will be submitted in writing (email is sufficient).
2.2 By acceptance of the written Quote (email is sufficient), the contract between We Are Era and the Contractual Partner will be concluded on the basis of the terms stated in the Quote and its acceptance, and with inclusion of these GTC. The acceptance of the Quote shall be issued in writing (email is sufficient).
2.3 Explicit provisions in the Quote or in the acceptance of the Quote, which differ from these GTC, shall take priority.
3. Service performance, liability insurance
3.1. The Contractual Partner shall perform its services personally or exclusively use professionally and personally qualified and reliable employees for this purpose. The Contractual Partner shall instruct them to apply special care in their work. The involvement of third parties, which are not employees of the Contractual Partner, requires the prior written agreement of We Are Era (email is sufficient). To the extent that the Contractual Partner leases employees as workers to We Are Era, it assures that it holds all permits required for this purpose.
3.2. The Contractual Partner shall conclude all contracts with third parties relating to the service to be performed in its own name and on its own account.
3.3. The Contractual Partner is not authorised to represent We Are Era in relation to third parties.
3.4. Unless agreed otherwise, We Are Era are not obligated to accept partial performances.
3.5. The Contractual Partner is obligated to obtain sufficient insurance for all risks and covering all damages (including consequential damages and loss of profit). A corresponding insurance policy shall be presented without request prior to the service performance.
4. Grant of rights
4.1. If copyrights, ancillary copyrights, title copyrights, design patents, personal rights and other rights are created in the course of the service performance by the Contractual Partner, in particular by works created by the Contractual Partner or inclusion of the services in projects or productions of We Are Era (hereinafter referred to as “Production“), the Contractual Partner shall grant these to We Are Era for comprehensive use for optionally frequent, worldwide, commercial and non-commercial, public and non-public purposes, which shall not be limited to online, film and television use and which shall include the right to further transfer.
The above rights of use are granted for the following purposes, in particular:
1) Optionally frequent playout on television, the internet and on the radio, regardless of the technical broadcasting method, the type of reception equipment, the broadcasting client/exploiter, the arrangement of the legal relationship between the client, in particular the channel and recipient (free-TV, pay-TV, pay-per-view, video-on-demand, near-video-on-demand, TV-to-mobile etc.) and the legal form of the client/exploiter; included is the right of the public rendition of radio broadcasts and the right to make the production accessible to a limited group of recipients; likewise included is the provision for individual access by means of television, computer, mobile end devices or similar (“on-demand”) as well as the interactive use;
(3) Film and audio adaptation and the audio-visual exploitation outside of radio broadcasting on image/sound carriers;
(4) Reproduction and dissemination;
(6) Use for advertising and clippings only with reference to the production and/or services of third parties, which are made perceptible to third parties at the same time as the production (e.g. split screen);
(7) Merchandising only with reference to the production;
(8) Exploitation in print or on sound carriers; public use at festivals and trade fairs; use for stage and radio audio drama versions;
(9) Public rendition;
(10) Use in audio text and teletext services;
(11) Feeding into databases, in particular to the internet;
(13) Further broadcasting and exploitation in a supplementary online service; and
(14) Use within the scope of all presently still unknown technical types of use.
4.2. The film production right (Sec. 94 German Copyright Act or respective local law) is held exclusively by We Are Era.
4.3. The Contractual Partner warrants that it will transfer all of the aforementioned rights to We Are Era, provided that they are created in the course of the service performance, within due time and without objections and free of charge, and it further warrants that the exercise of the rights by We Are Era or its licensee does not infringe on the rights of third parties.
4.4. We Are Era is not obligated to use the Contractual Partner’s rights and works granted above. Artistic decisions relating to content, design and technology regarding the production shall be within the sole privilege of We Are Era. We Are Era are entitled but not obligated to name the name of the Contractual Partner when exploiting the transferred rights. We Are Era shall protect the legitimate interests of the Contractual Partner at the same time.
4.5. The ownership of all items created, if applicable, in connection with the works of the Contractual Partner, including components, drafts, photographs, copies, models, films, etc. shall transfer to We Are Era at the time of their creation. Separate remuneration shall not be owed for this. Insofar as the named items are in the ownership of the Contractual Partner, it shall keep them safely with the diligence of a prudent businessman, on behalf of We Are Era, and return them on first request to We Are Era or a third party named by We Are Era.
5.1. The remuneration shall be payable and due after the complete performance of the service, ready for acceptance, and upon regular invoicing. All services owed by the Contractual Partner pursuant to the contract and grants or transfers of rights shall be settled as included in the contractually agreed remuneration.
5.2. The Contractual Partner has experience in the industry and knowledge of the market customs and market prices. In light of this, the Contractual Partner acknowledges in agreement that the agreed remuneration shall cover the service as well as the comprehensive grant of rights related thereto, and that this remuneration specifically takes into account the circumstance that not only the contractual service, but also the production to be created may be exploited optionally many times in light of its specific production and financing conditions with the intention of exploitation as many times as possible. The Contractual Partner acknowledges further that the scope of these exploitations may cover all types of use.
5.3. The Contractual Partner warrants that it is a German business and pays the value added tax in compliance with regulations.
5.4. The Contractual Partner is obligated to provide the following documents to We Are Era on its request for the purpose of clarification.
(a) Certificate from the competent tax office, confirming that the remuneration for the contractual services is treated as income from self-employed work in the definition of Sec. 18 EStG [German Income Tax].
(b) Further supporting documents verifying the independent status in view of the contractual activities, for example, a certificate from the artists’ social insurance, a decision on status from the German Pension Insurance, a trade registration and/or proof from the health insurance on the regular payment of premiums.
In case the aforementioned documents are not submitted completely, We Are Era is entitled to deduct and pay from the remuneration the respective statutory wage tax and the statutory contributions to social security.
5.5. Offsetting against contested counter claims not validly acknowledged is not permissible to the Contractual Partner. The same applies to the assertion of rights to withholding.
5.6. Claims arising from Sec. 32, Sec. 32a, Sec. 32c German Copyright Act or respective local law will lapse by limitation one year after the start of the statutory limitation period.
6. Separation between advertising and programme
The Contractual Partner undertakes not to include names, texts or graphic presentations, which must be regarded as direct or indirect advertising, in the work or production and to strictly observe the principle of the separation between advertising and programme. The Contractual Partner is not permitted to accept any money or non-cash benefits for the production or the work. The Contractual Partner is obligated to inform We Are Era in writing (email is sufficient) without delay in each case of accordant offers from third parties and any corresponding contracts already concluded with them, disclosing the product and the manufacturer. We Are Era are authorised to transfer this information to the client.
7. Statements in the press and PR
Statements in the press, interviews, announcements and other information to the public, which point out or refer to the content of the contract, the activity of the Contractual Partner on behalf of We Are Era, the contractual productions or their content, require the prior written agreement of We Are Era (email is sufficient). The Contractual Partner is not permitted to use its name in reference to the activity on behalf of We Are Era for the purpose of advertising for third parties.
8. Special duties
8.1. The Contractual Partner shall be liable to the full extent for all damages the Contractual Partner causes for We Are Era. The Contractual Partner shall be held accountable for intent and any form of negligence. The Contractual Partner warrants that all services performed on behalf of We Are Era by the Contractual Partner and the third parties contracted by the Contractual Partner are free from the rights of third parties. The Contractual Partner shall also be liable for any damages caused at the fault of vicarious agents and persons hired by the Contractual Partner for the fulfilment of the obligation including, among other, the manufacturers and suppliers and/or services of subcontractors and/or other persons working for the Contractual Partner.
8.2. The Contractual Partner is obligated to keep all agreed dates. Unless expressly agreed otherwise, all dates are fixed dates. We Are Era shall be notified immediately of any delays and/or impending delays. The Contractual Partner is obligated to perform all services within the set financial framework.
8.3. The Contractual Partner is required to assign work only to trained and qualified personnel. New personnel shall be familiarised with the work by the Contractual Partners on time before they commence activities. On request, We Are Era shall obtain access to all contracts, in particular, regarding the required grants or transfers of rights. The technical instruction, training and supervision of the trained personnel of the Contractual Partner shall be within the exclusive responsibility of the Contractual Partner. The Contractual Partner undertakes to observe the statutory safety regulations applicable to the contractual services. The Contractual Partner shall indemnify We Are Era to this extent from any and all damage compensation claims brought by third parties.
8.4. The Contractual Partner shall have the sole responsibility for the complete payment of the remuneration and for the payment of the surcharges according to collective pay scales/labour agreements, taxes, and contributions to social security for the personnel provided by the Contractual Partner, and it shall indemnify We Are Era from and against all claims. We Are Era shall grant no payments or other allowances to the Contractual Partner’s personnel.
8.5. The Contractual Partner shall be responsible at its own cost for compliance with the public labour laws, in particular the German Minimum Wage Act (MiLoG) or respective local law, the Posted Workers Act (AentG) or respective local law, the Law on Labour Leasing (AÜG) or respective local law, and all other work safety and accident prevention regulations, requirements of the respective professional association and the generally accepted safety and occupational medical rules where its services are concerned.
8.6. The Contractual Partner shall provide all requested information to We Are Era at any time, which may be required for the agreed service or the enforcement and/or defence of rights of We Are Era.
8.7. The Contractual Partner shall inform We Are Era without delay if third parties bring claims against the Contractual Partner for a violation of the aforementioned obligations. If such claims are brought against We Are Era, the Contractual Partner shall indemnify We Are Era to the full extent in this regard. The appropriate costs for the legal defence, which are incurred by We Are Era in this context, shall be refunded by the Contractual Partner to We Are Era.
9. Termination of the contract relationship
9.1. The contractual relationship shall end on expiration of the contractually agreed term. If no term is agreed, the contractual relationship shall end on the complete and flawless performance of the services by the Contractual Partner.
9.2. If a continuing obligation is given and no fixed term is agreed, the contractual relationship may be terminated ordinarily at any time in accordance with the legal regulations.
9.3. If a contract for work and services is established, We Are Era may terminate the contract up until the completion of the work. In that case, We Are Era shall pay all costs incurred up until this time against proof.
9.4. The right of extraordinary termination remains unaffected from this.
10. Limitation of liability
10.1. We Are Era shall be liable only for damages resulting from injuries to life, body or health, which have been caused by We Are Era or their vicarious agents by an intentional or gross negligent breach of duty or tortious act, and for other damages, which are the result of an intentional or gross negligent breach of duty or tortious act by We Are Era or their vicarious agents.
10.2. Liability of We Are Era for simple negligence shall be limited to the typically predictable damage.
10.3. Any liability for damages due to force majeure is excluded. Any liability for lost profit and all consequential damages is likewise excluded.
Claims against We Are Era for damages resulting from injuries to life, body or health, caused by an intentional or negligent breach of duty by We Are Era itself or their vicarious agents, shall be subject to the statutory limitation period. All other claims brought against We Are Era for breach of contractual duties shall lapse by limitation one year from the start of the statutory limitation period, unless they are based on intentional or gross negligent actions.
The Contractual Partner is obligated to treat the internal matters and processes of We Are Era and the client of We Are Era coming to its knowledge in the context of this contractual relationship as confidential. This obligation also applies to the content of the activity, the contract and the content of the production. The Contractual Partner shall maintain absolute secrecy in relation to third parties, unless disclosure is required for the implementation of the terms of the contract or if We Are Era have previously agreed in written to the disclosure (email is sufficient).
13. Data protection
13.1. The Contractual Partner and any person acting under the authority of the controller or the processor, who has access to personal data, shall not process this data, except on instructions from We Are Era, unless they are required to do so by EU law or the law of a Member State. All persons who receive access or who might have access to the personal data of We Are Era shall be obligated to observe confidentiality. The foregoing duties shall also continue to apply after termination of the service performance.
13.2. The kind, scope and purposes for which the Contractual Partner may permissibly process the personal data follow from the service agreement in a combined consideration with these GTC. A change in the kind, scope and purpose of the processing requires the prior consultation with We Are Era.
13.3. The Contractual Partner undertakes to implement and maintain in particular measures for the observation of data security in accordance with Art. 32 GDPR (DSGVO). These must ensure at least that data:
– are used and stored in a manner ensuring the confidentiality at all times and, if possible, in encrypted form (state of technology);
– are secured against loss (backups);
– are used only on end devices, the privacy of which is ensured by appropriate security measures (anti-virus program, 2FA or MFA; PIN/facial recognition, screen lock after at most 15 seconds of inactivity);
– are limited to the required minimum regarding kind and scope.
13.4. We Are Era are the point of contact for the rights of data subjects pursuant to Art. 15 to Art. 22 GDPR as relates to data which are transferred to the Contractual Partner or which come to its knowledge otherwise in the course of the service performance. The Contractual Partner shall transfer such requests from data subjects without delay, whereas no later than ten working days to We Are Era and, if needed, support the answering of such requests with information as to its data processing.
13.5. If and insofar as the Contractual Partner engages further service providers in the service performance, this requires the prior agreement of We Are Era. Service providers known at the signing of the contract shall be named and be regarded as approved. The Contractual Partner shall ensure that the required agreements according to Art. 28 GDPR and, if applicable, according to Chapter V GDPR regarding all service providers are concluded with them.
13.6. The Contractual Partner shall ensure the compliance with this clause by suitable measures. We Are Era are authorised to check these measures at any time for a specific reason and generally once a year.
13.7. We Are Era process the personal data of the Contractual Partners in particular for the purposes of providing evidence to clients (in terms of copyright regulations). In this case and insofar as this is legally warranted, We Are Era shall be authorised to make personal data of the Contractual Partner available to the clients. If not done already, the Contractual Partner shall inform the relevant data subjects according to Art. 12 seqq. GDPR.
14. Final provisions
14.1. If a provision should be or become fully or partly invalid, the validity of the remaining provisions shall not be affected by this. The statutory provisions shall apply instead of the invalid provision. The same applies in case of any omissions in provisions.
14.2. General terms of the Contractual Partner contrary to or deviating from these GTC are not accepted. Such general terms shall become part of the contract, if at all, and exclusively if they have been accepted in writing by the management of We Are Era. They shall be non-binding even if it has not been expressly objected to them.
14.3. The place of jurisdiction for all disputes arising between the Parties from the contractual relationship is the place of origin of the respective contractual We Are Era entity to the legally permissible extent. The local law of the place of origin of the respective contractual We Are Era entity applies to this contract, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.