Please note: The contract language is German.
§ 1 Subject of use
1.1 The internet portal for media competitions set up by us for companies (hereinafter “Brands”) on our website www.spotrocker.de may be used free of charge by users (hereinafter “Users”) in accordance with these provisions. Media in this sense are work creations of an auditory, visual and/or audiovisual nature such as videos, animations, cinemagraphs, photos, images, graphics, audios, music, sounds and can be available in various technical end formats (hereinafter also referred to as "works"). The provider is SPOTROCKER GMBH, represented by the Managing Director Mr. Thomas Braun, Gress-Str. 47, 71384 Weinstadt, Germany.
1.2 This portal is used by Brands to advertise media competitions (campaigns) amongst various registered users of our portal. Users can post (upload) their self-created, previously unpublished works for publication, viewing, evaluation, commentary and circulation by other users and Brands after registration and provision of their master data according to Section 4.3. Works are only published following the Brand’s relevant approval and checking of content.
1.3 Users can participate in a campaign in two ways, one of which does not exclude the other within a campaign. When participating via a published work, users can win the “Rocker Awards”, which are decided using the place allocation at the Brand’s discretion taking the work’s performance indicators into account. Voting allows Users to win the “Voter Awards”, which is automatically decided using the User's volatile activity index at the time the campaign ends, whereby a better placement is achieved with a higher activity index compared to other Users in the campaign that participate in the evaluation.
1.4 The Brand determines the substantive terms and conditions of a campaign in accordance with our written pre-structured briefing template, which is accessible online to registered Users during an ongoing campaign and may not be reproduced or distributed by the User except for their own use. The provisions refer to the topic and form of the works to be created, as well as to the possible profits. We ensure compliance with this, but do not ensure any kind of legal compliance. The Brand itself has no administrative access to the uploaded works.
1.5 Under our General Terms and Conditions, at the end of the campaign or within a period determined by us, the Brand is obliged to determine the winning works in the amount of the places awarded in the run up and thereby to determine the winner of the “Rocker Awards”.
1.6 The Brand is free to choose and makes decisions based of appropriate criteria and without discrimination, taking into account the work’s performance indicators. The Brand is under no obligation to justify its decision.
1.7 The provision of our portal’s functionalities does not imply certain outcomes or results, in particular winning the Rocker and/or Voter Awards or specific media coverage of the campaign as a whole and/or our website.
1.8 The published campaigns and works remain available online for an indefinite period of time and can be made unavailable on our website only by us, and at any time. The User and/or the Brands have no legal claim in this regard.
1.9 Otherwise, Users’ content and/or contributions for Brands are not stored or archived, unless this has been expressly agreed with us or is required by mandatory legal provisions (e.g. German Commercial Code (HGB) or Tax Code (AO)).
1.10 We do not accept any responsibility for supplied data material, ad texts or storage media relating to these; in particular, we are not obliged to retain these or return them to the User or third parties.
1.11 Under no circumstances are we liable for the production and maintenance of the data connection between Users’ or other users’ end devices and the transfer point operated by us or a network operator. We are entitled to redefine the data delivery point at any time if this is necessary to enable smooth use of the services.
1.12 The registered User has the exclusive option to submit a work via their access-protected account; we reserve the right, if necessary, to provide other upload options. Unsolicited works sent to us on fixed storage will not be considered and cannot be returned. We are not liable for unsolicited works or data sent to us.
1.13 Users have no legal claim to the provision of the services mentioned under Section 1.2 or to participation in the competitions under Section 1.3; we are only entitled and obliged with regard to the Brand. The User is not owed a certain outcome or a certain function. The temporally unlimited User relationship can be ended, stopped or restarted by us at any time, even during campaigns that have already been started, without stating reasons; the User has no claim for reimbursement of expenses or payment of a license fee in these cases either. The User may in turn give written request to have their account deleted by us, whereby their published activities remain under their username; the granting of rights under Section 2 remains unaffected by this.
1.14 Users who wish to register for the use of our portal must be 16 or over. Users participating in a work-uploading campaign must be 18 or over. The existence of the condition mentioned in sentence 1 or 2 above is affirmed with provision of the master data pursuant to Section 4.3. An underage User who is 16 or over may only participate in a campaign with a work, if written consent from their legal representative is additionally submitted.
1.15 Submitted works cannot be edited by the User. If the User wants to update its submitted work, the User must ask us in writing and, after approval, have us delete the work and has to upload a new work. All associated elements of the deleted work are lost; these are, for example, the points, statistics and work comments received for it. The rights to the deleted work granted in Section 2 remain unaffected.
1.16 If sales tax is payable on awarded cash prizes, these cash prizes are to be understood as gross prices; in other words, they include the applicable sales tax where necessary.
§ 2 Granting of rights
2.1 The respective creating User holds respective copyrights and related property rights to the work uploaded as campaign entries. By uploading to our portal, the User grants the Brand the irrevocable, substantively, spatially and temporally unlimited simple usage rights for all known and unknown types of use. The granting of rights is not limited to the right of public access and distribution on the internet, but includes in particular exploitation in other ways, e.g. on radio and television, on CD-ROM, as a digital download, in print versions, as well as in all other possible ways, in part or in whole. The Brand is also entitled to evaluate the works in conjunction with other works, to edit them, to subsequently change, supplement and expand them. The User renounces their right to be designated as the author and shall accordingly place no “watermark” or suchlike in the work, whether concealed or open.
2.2 This granting of rights extends beyond the duration of the campaign until the end of the legal protection period. It also applies to rights that are subsequently created as a result of new legislation or for other reasons.
2.3 Regardless of the above granted rights, we are non-exclusively entitled to use the User's work for demonstration purposes or as a reference for our services. To this end, we can indefinitely make the work or individual parts thereof available to the public, for example, on our websites or our social channels or otherwise exploit and/or process it, whereby no agreement and/or approval is required, neither with the Brand nor with the User.
2.4 The User authorizes the Brand as the holder of simple usage rights irrevocably to assert the rights assigned to the Brand against legal infringers at any time in their own name; in particular to proceed against any impermissible use of the work, in part or in whole, in their own name.
2.5 For the avoidance of doubt, we state that works that are not published or rejected in the context of a campaign can only be used by the user further independently if all references to the brand and thus also all provided brand/campaign materials have been removed from the work. This applies unless otherwise communicated by us on behalf of the Brand and/or by the Brand itself.
§ 3 Users’ obligations
3.1 The User may only register pursuant to the above Section 1.2 with their personal, valid email address. So-called “trash or disposable email addresses” or suchlike are not permitted.
3.2 The User receives a corresponding access authorization consisting of a username and a password to access data and applications for its account. The username and password may be changed by the User at any time, but may only used by the User themselves and must otherwise be kept secret.
3.3 The User is obliged to provide their valid master data, consisting of first name, last name, address, date of birth, email address and telephone number in their personal profile and always keep these up to date.
3.4 The content that is uploaded or linked by the User shall only be published under the User’s username. The username can and should be chosen by the User pseudonymously.
3.5 The User is not authorized to permit third parties to use our services via their user account.
3.6 The User is obliged not to upload or link any content or work contributions whose reproduction, publication or circulation violates the rights of third parties or violates legal provisions or accepted standards of morality. It is particularly forbidden to
- upload files containing viruses or other malicious code;
- post content containing hate speech, racist, discriminatory, threatening or pornographic, or content that incites violence;
- violate third parties’ copyrights, trademarks, competition rights or right to informational self-determination;
- upload files that could block, overburden or interfere with the proper functioning or appearance of our portal.
Failing this, the User shall indemnify us and/or the Brand from all third-party claims that are asserted to us due to the violation of the aforementioned obligations; this indemnity also applies to all expenses which we necessarily incur that stem from or are in connection with a claim by a third party, e.g. the costs of legal defense.
3.7 The User’s uploaded or linked content or work entry may not contain any advertising or commercial offers outside the Brand’s campaign specifications.
3.8 The User is obliged to provide information upon first request, as to whether their work entry represents a their typical professional service and whether they are an entrepreneur in this relation under Section 2 (1) German VAT Act (UStG), and if they are exempt from VAT pursuant to Section 19 UStG.
§ 4 Assurances, obligations and rights of third parties
4.1 The User shall ensure that they hold all copyrights and/or ancillary copyrights pursuant to Section 2 above required for their work entry, as well as for all parts of its work, for the appropriate use and granting of rights as well as the consent of the holders of the affected general privacy rights (for example, regarding the right to use their image) and has obtained the express and legally binding consent of all owners of affected rights (for example, performing artists, cinematographers, composers, performing rights societies, etc.).
4.2 The User must indicate any use or processing of copyrights and related property rights of third parties (for example, stock footage) with a clear description of the work service used or processed and, if applicable, the respective owners of the affected general personal rights. If necessary, the user demonstrates in an appropriate manner that
- for copyright-relevant third-party services under their respective license provisions (such as Creative Commons licenses), the usage and granting of rights described in Section 2 above is permitted without restriction, i.e., in particular, the name of the author must not be mentioned (see for example CC0 under "Public Domain Dedication "or CC PD under" Public Domain Mark”);
- no legally binding obligations (Section 29 (2) UrhG) exist with a performing rights society for copyright-relevant third-party works, for example, via correspondingly valid entitlement contracts, and the work is not part of the copyright owned by performing rights societies (e.g. GEMA);
- the use and granting of rights described in Section 2 above with regard to the respective owners of the affected general privacy rights is fully permitted with their express consent.
4.3 Failing this, the User shall indemnify us and/or the Brand if claims are asserted to us due to the violation of the third parties’ rights; this indemnity also applies to all expenses which we necessarily incur, stemming from, or in connection with a claim by a third party, e.g. the costs of legal defense.
4.4 The User expressly assures before publication on our portal that the work uploaded as a campaign entry has not yet been published or distributed elsewhere.
§ 5 Availability and warranty
5.1 The User agrees that according to the current state of technology it is impossible to guarantee completely safe data communication via the internet that is free of faults and/or available at all times. We are therefore not liable for the availability of our portal or the works or content in general.
5.2 The rights granted under Section 2 are granted directly to the Brands. For use beyond the granted scope, however, the Brand is in this respect directly and solely liable to the User as the entitled or obliged party.
5.3 We are not obliged to monitor the Brand’s usage for legal compliance or to investigate circumstances that indicate an illegal activity.
§ 6 Abuse and violations
6.1 The User warrants that they will adhere to accepted standards of morality and they treat other users, Brands, any contributions and the portal itself in a respectful, appreciative and constructive manner. All the Users’ activities or contributions, such as comments and votes must present a fair, reasonable and objective tone and must always be closely related to the respective campaign topic or work, in other words, in particular, no illegal, violent, racist, offensive, derogatory or otherwise damaging, unacceptable or indecent content, or any link to such.
6.2 Users may only receive points via the procedural functional channels that we specify and not using improper manipulations of any kind. Likewise, the activity index must not be manipulated and/or misused. Examples of abusive manipulations are:
- Attempting to tap the traffic of the technical program network or other such background processes and manually infiltrating them via script requests or sending to our servers.
- Very frequent writing of comments that have no explanatory value or reference to the campaign and/or the work in terms of content and/or always repeat themselves and thus give rise to the reasonable suspicion that these comments are only written to earn points. Otherwise, in such cases we can delete comments without prior notice.
- Very frequent consecutive watching of works and use of the share function in a way which differs from the intended purpose, which thus gives rise to reasonable suspicion that these activities are only carried out to earn points.
- deduct unduly earned points;
- retain any improperly obtained profits, and subsequently reclaim already paid cash or material prizes;
- remove any posts by the User;
- decrease the User's activity index by subtracting points at will;
- exclude Users from ongoing and/or future participation before, during and after campaigns;
- partially or completely block the User's account on a temporary or permanent basis.
6.4 The evaluation and decision regarding the User behavior and the extent of the consequences and sanctions are at our discretion.
6.5 In the case of Rocker and/or Voter Awards won in an inadmissible manner, the work and/or the user remains in the same position, so that other works and/or Users are not moved up.
§ 7 Other liability
7.1 We are liable for willful misconduct and gross negligence. We are only liable for slight negligence in the event of breach of a fundamental contractual obligation (cardinal duty), the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the user can regularly rely, as well as for damages resulting from injury to life, limb or health.
7.2 We owe the due diligence that is customary in our line of business. When determining whether we are at fault, it must be taken into account that software or web applications cannot be created without technical error.
7.3 In the case of slight negligence, liability is limited to the amount of foreseeable damage that can typically be expected.
7.4 We are not liable for the loss of data if the damage is caused by the Brand’s failure to perform backups and thereby ensure that lost data can be recovered with reasonable effort.
7.5 The above provisions also apply in favor of our vicarious agents.
§ 9 Final provisions
9.1 Unless otherwise stated above, any amendments, supplements and termination of contractual arrangements must be in writing; the same applies to any waiver of the written form requirement.
9.2 Should individual provisions of the agreements between the Parties be or become invalid either in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the Parties undertake to replace the invalid provision with an effective provision coming as close as possible to the economic purpose of the invalid provision. The same applies to any gaps in the Agreement.
9.3 The law of the Federal Republic of Germany applies. Insofar as legally permissible, the sole place of jurisdiction is Stuttgart, Germany.
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