“COPRA local server”
CinePostproduction GmbH, Beta-Straße 1, 85774 Unterföhring, Germany (“CinePostproduction“) offers its clients the ability to save moving image contents which have been created within the framework of a film production on a server of CinePostproduction (“COPRA Server”). The moving image contents can be viewed, commented on, or edited, by the users authorized by the client, within the COPRA Server by means of the access software provided by CinePostproduction in the form of a web application and/or an app for iPhone, iPad, iPod Touch or Apple TV (“COPRA Client”).
For the use of the COPRA Service, the following conditions shall exclusively apply:
Sec. 1 Subject Matter of the Contract
The object of the present contract is to regulate the provision of storage space on the COPRA Server of CinePostproduction, to grant access to the contents saved on the COPRA Server, including moving image content, video files, and/or comments in text form (“Contents”), and to establish user access to the COPRA Server.
Sec. 2 Provision of storage space and giving access to the Contents
(1) Pursuant to the terms of the present agreement, CinePostproduction will provide space on the COPRA Server for the storage of Contents and will make them available to the client and its users. As from the time agreed upon, the Contents will be available for viewing, comment, or editing by means of the access mechanisms outlined under Sec. 5.
(2) CinePostproduction shall check the Contents on the COPRA Server for viruses and other harmful programs before such Contents are saved using state-of-the-art software. CinePostproduction shall, on a daily basis, save the Contents uploaded by the client within the framework of this contract.
(3) The COPRA Server shall be ready for uninterrupted use 24 hours a day and seven days a week, with an availability rate of at least 99% as an annual average. Such availability rate is exclusive of periodic unavailability due to maintenance and software updates, as well as instances in which the server cannot be accessed via the internet due to technical or other problems outside the control of CinePostproduction (including without limitation force majeure, third party’s/parties’ fault, etc.).
(4) In case of a technical failure of the COPRA Servers, CinePostproduction shall immediately inform the client thereupon. To the extent that such failure lies within the range of responsibility of CinePostproduction, CinePostproduction shall endeavor to remedy this failure within two working days from the date of occurrence.
Sec. 3 Right of use of the Contents
(1) The client shall grant CinePostproduction the right to use the Contents saved on the COPRA Server to the extent necessary for the purposes of the present agreement, including the right to copy such Contents, especially for back-up purposes, and the right to make such Contents accessible to users as stated by the client. This right to use is limited in time to the term of this contract; it is non-transferrable and non-exclusive.
(2) CinePostproduction will not grant any rights to use the Contents saved by the client and kept ready for use on call.
Sec. 4 Liability for the Contents saved on the COPRA Server
(1) The client has complete liability for the Contents saved on the COPRA Server under its agreement with CinePostproduction. CinePostproduction shall not check any of these Contents for, including without limitation, lawfulness, accuracy, or fitness for a certain purpose.
(2) If the client is not, or is only partly, the owner of the rights to Content saved by it on the COPRA Server, it shall affirmatively warrant that the owner of the rights to such Content (including without limitation the photographer of an image, creator of a video, a person shown therein) has given consent for CinePostproduction to save such Content on the COPRA Server, and to make such Content accessible to the users as stated by the client.
(3) The client shall exempt CinePostproduction from all claims asserted by third parties arising from the storage of any Contents as ordered by the client, including any storage request(s) made by the client to CinePostproduction, or any Contents saved on the COPRA Server by the client and the users within the framework of access herein described, unless the client can prove that it was not legally responsible for such infringement of law and/or obligations. This exemption also stipulates that appropriate lawyers and/or legal advisor fees must be borne by the client.
Sec. 5 Giving access to the Contents
(1) Only a valid user, duly recognized and authorized by the client, shall have access to the Contents that are saved on the COPRA Server or made accessible to the client within the framework of this contract.
(2) Clients may access the Contents either:
(a) Via the “COPRA Client” app developed by CinePostproduction,
(b) Via the browser-based web application developed by CinePostproduction.
The “COPRA Client” app can be downloaded from the iTunes store and can be installed on an iPhone, iPad, iPod Touch or Apple TV. The web application shall be available on demand by CinePostproduction at the website “copra.de”.
(3) CinePostproduction shall create user access accounts (“Accounts”) for the users authorized by the client.
(4) If the Contents are to be accessed via the web application, the client shall inform CinePostproduction in text form (letter, fax, or e-mail) of the authorized persons by stating their names and e-mail addresses. CinePostproduction shall then create the corresponding number of personalized Accounts and inform the client in text form (letter, fax, or e-mail) thereupon by transferring the user names and user passwords.
(5) CinePostproduction shall create additional Accounts at the client’s request throughout the duration of this contract.
(6) CinePostproduction shall be liable neither for the quality of the necessary hardware and additional software required by the end users of the service (including without limitation the web browser) nor for the necessary internet connection.
Sec. 6 Terms of payment and default
(1) The compensation for the services to be rendered within the framework of this agreement (see sec. 1) shall be calculated as the amount of time that all moving image contents are saved for the client. The compensation for any services rendered by CinePostproduction exceeding the agreed-upon amount shall be the object of a separate agreement.
(2) All compensation shall be due when payable, plus any applicable VAT amounts.
(3) CinePostproduction will issue invoices to the client within the agreed-upon payment periods. All of these invoices shall become due for payment according to the agreed-upon schedule.
(4) If the client is in default with past-due invoices, then the client shall be obligated to pay a default interest rate amounting to 5% above the current base interest rate of the European Central Bank (German Central Bank discount rate). If the client is in default on two successive invoices, CinePostproduction shall be entitled to block the client’s access to the COPRA Server until such invoices have been settled. Assertion of further default claims is not excluded.
Sec. 7 Obligations of the Client: Blocking
(1) The client must fulfill all of its obligations that are necessary for the settlement of this contract.
(2) The client must keep secret the rights of use and access assigned to the users, protect these rights from being accessed by third parties, and must not forward these rights to unauthorized users. This data must be protected by means of appropriate and customary measures. The client shall inform CinePostproduction immediately if access data has been compromised, if there is a suspected breach of access data and/or passwords have come to the knowledge of non-authorized persons, or if an iOS or tvOS end device (see Sec. 5 (4) above) registered for COPRA has been lost, so that CinePostproduction is able to block the Account concerned.
(3) Access to Contents via an iOS or tvOS end device is authorized exclusively through the use of devices furnished with the original operating system of the device manufacturer. Such operating system must not be changed in any way by so-called “jailbreaks”.
(4) The client must bind all authorized users to the obligations of the present contract, valid also as between the client and CinePostproduction.
(5) The client must save the data stored on the COPRA Server sua sponte on a regular basis and as appropriate in light of the importance of said data, and must create its own back-ups in order to enable the reconstruction of this data and information in case of loss. CinePostproduction’s obligation to create back-ups is independent of this provision.
(6) If – despite a warning – the client fails to meet any of the obligations stated above, especially the requirement concerning the limitation of access to COPRA to authorized users with iOS or tvOS end devices utilizing the original version of the installed operating system, CinePostproduction may block the client’s access to the COPRA Server.
Sec. 8 Confidentiality, Data Security
(1) CinePostproduction shall keep secret all information and data obtained by the client within the framework of this contract and shall require confidentiality of its staff deployed in connection with this contract and the fulfillment thereof.
(2) CinePostproduction shall protect the Contents saved by the client, and by the users authorized by the client, on the servers of CinePostproduction from unauthorized notice, storage, change, or any other non-authorized access or attack. To fulfill this purpose, CinePostproduction shall implement appropriate, customary and state-of-the-art measures including, but not limited to, virus protection programs and other security programs designed to block harmful activity, as well as security measures for its facilities, including without limitation safeguards against burglary.
Sec. 9 Data protection
(1) If the client transfers the personal data of their staff members and/or of authorized COPRA users to CinePostproduction, the client shall warrant that they are entitled to do so according to any relevant data protection regulations, shall assume responsibility in case of any infringement, and shall exempt CinePostproduction from any claims of third parties. To the extent that such data is personal in nature, the processing of such data shall be underaken pursuant to an order from the client to CinePostproduction. CinePostproduction shall follow the requirements of applicable law for the processing of data under such an order and shall also follow the instructions of the client (including without limitation any requirements concerning purging and blocking obligations). Such instructions from the client must be submitted in written form and in due time.
(2) CinePostproduction shall only gather and use data related to the client to the extent necessary for executing this contract and, in so doing, shall observe the relevant data protection regulations. The client agrees that such data will be gathered and used to the extent described herein.
Sec. 10 Warranty concerning defects and liability
(1) Regarding the use of storage space available on the COPRA Server, CinePostproduction excludes any and all liability not due to its own error or for initial defects of the COPRA Servers. Later objections arising from any open or hidden defects are excluded hereby.
(2) CinePostproduction shall only be liable for such damage – independent of the legal basis – if it has breached a material tenant of or obligation under this contract (a “cardinal duty”) in a culpable manner which endangers the contract’s object, or if said breach is attributable to gross negligence or willful conduct. This limitation of liability shall also apply if an agent of CinePostproduction is responsible for such damages.
(3) If such breach of an obligation fundamental to this contract (a “cardinal duty”) is not attributable to gross negligence or willful conduct, CinePostproduction’s liability shall be limited to standard damages or to the extent of damage that could be reasonably foreseen at the time of contract. If the Contents saved on the COPRA Server are lost, CinePostproduction’s liability shall be limited to the typical expenses for recovery. Liability for any damage resulting from unavailability of the COPRA Servers is excluded.
Sec. 11 Duration and termination of this contract
(1) This contract, and the duration of this contract, shall commence upon the execution of this contract and shall terminate after the period agreed upon, or if stipulated otherwise, by proper notice of termination.
(2) The right to terminate for cause remains untouched. For CinePostproduction, cause shall be deemed present if the client breaches its fundamental contractual obligations as stated under Sec. 7.
(3) All Contents saved for the client shall be purged upon the expiration of this contract according to Sec. 11(1).
Sec. 12 Closing Provisions
(1) Any amendment to this contract must be made in written form. This shall also apply to the requirement of written form itself. The written form requirement, for the purposes of this section, will not be fulfilled by an e-mail.
(2) This contract is construed under and governed by German law.
(3) The exclusive place of venue for all disputes arising from this contractual relationship shall be Munich, Germany. CinePostproduction shall, however, remain entitled to file suit in the jurisdiction of the client or to institute other court proceedings.
(4) Invalidity or legal ineffectiveness of one provision of this contract will not touch this contract’s validity as a whole. Any provision deemed invalid by a competent court or legal authority shall be replaced by a similar provision which, as nearly as possible, meets the economic and legal purposes of invalid provision.