Terms and Conditions

Beautiful Destinations Booking GmbH Content License Terms and Conditions

 

The following content license terms and conditions shall apply to any license granted by the owner of the rights of use and exploitation of the photographs (hereinafter the “Licensor” or “Party”) created especially for Beautiful Destinations Booking GmbH (hereinafter the “Licensee” or “Party”) (Licensor and Licensee hereinafter the “Parties”) as part of the Licensor’s services conducted vis-à-vis the Licensee (hereinafter the “Content”), which are the subject of this content license terms and conditions (hereinafter the “Agreement”). The Content is protected by copyright. The Licensee wishes to comprehensively exploit and commercially use the Content within the framework of the app “Layla”, by Beautiful Destinations Booking GmbH, including any social media, marketing and advertising activities and measures in relation with this app (hereinafter the "App") for which it is responsible and which it operates.

 

1. Granting of Rights to the Content

1.1 It is the common understanding of the Parties that all rights of use and exploitation to the Content (hereinafter the “Contract Rights”) shall be fully and without any limitation regarding time, territory and/or content licensed to the Licensee and that the Licensee shall be enabled to use and exploit these rights at its own discretion, thereby excluding any rights of the Licensor.

1.2 The Licensor hereby grants the Licensee a comprehensive, irrevocable, exclusive, sublicensable, worldwide and perpetual right of use to the Content, which applies to all known types of use without restriction. Furthermore, the above grant of rights shall also apply to currently unknown types of use without restriction. 

1.3 The granted Contract Rights are freely licensable for the Licensee. 

1.4 The granted Contract Rights include in particular 

1. the right of publication (Sec. 12 UrhG) as well as the right to adaptations and transformations of the Content (Sec. 23 UrhG);

2. all rights to exploit the Content in physical form; this right includes in particular the right of reproduction (Sec. 16 UrhG), the right of distribution (Sec. 17 UrhG), and the right of exhibition (Sec. 18 UrhG);

3. all rights to publicly reproduce the Content in non-physical form (right of public reproduction). The right of public reproduction includes in particular the right of recitation, performance and presentation (Sec. 19 UrhG), the right of making works available to the public (Sec. 19a UrhG), the right of broadcasting (Sec. 20 UrhG), right of communication by video or audio recordings (Sec. 21 UrhG), the rights according to Sec. 22 UrhG; 

4. all rights under the Sec. 70 et. Seq. and 85 et. Seq. UrhG.

1.5 To the extent the Licensor uses any employees, subcontractors or other third parties for the provision of his services, the term Content shall also comprise any physical and non-physical results which have been developed, created or produced by such persons or entities. The Licensor shall ensure vis-à-vis such persons or entities, and hereby guarantees, that the Licensor is in the position and entitled to transfer the rights to the Content to the Licensee as contemplated by this Agreement. Upon request, the Licensor shall furnish corresponding evidence to the Licensee.

1.6 The Licensor grants the Licensee the right to use the respective title of the Content as well as the names, titles, logos and images of both the Licensor and the author of the Content on the App, including any social media, marketing and advertising activities and measures in relation with this app, in order to perform this Agreement.

1.7 The Licensor agrees within the scope of his right of determination (Sec. 13 S. 2 UrhG) that the Licensor is not named and designated as author within the scope of the use of the Content.

1.8 The Licensor shall be obligated, upon the Licensee's request, to immediately make available all documents and provide all assistance necessary for the Licensee to obtain the rights to the Content in accordance with this Agreement. In particular, the Licensee is entitled to request the execution of separate declarations of assignment with regard to the transfer of the Contract Rights for submission to the competent authorities, if applicable.

1.9 With the remuneration agreed under this Agreement, the transfer or granting of the Contract Rights in accordance with the previous paragraphs is completely settled. 

1.10 The mandatory provisions of copyright law remain unaffected by the above provisions. With regard to the Licensor's right of recall due to non-exercise of the transferred rights according to Sec. 41 UrhG the Parties clarify that such right does not exist if the non-exercise or insufficient exercise of the right of use is mainly due to circumstances which the Licensee can reasonably be expected to remedy.

1.11 The granting of rights with regard to the Contract Rights under this Agreement is unconditional and irrevocable and is valid perpetually also beyond the term of this contractual relationship.

1.12 The transfer of the Contract Rights under this Agreement shall also apply worldwide to all copyrights in legal systems outside Germany. In jurisdictions that recognize a "work-made for hire" principle, such as Sec. 101 of the US Copyright Act, this principle shall also apply to this Agreement. In this respect, the Licensee shall be deemed the originator of the Content.

 

2. Obligations of the Parties

2.1 The Licensor shall deliver to the Licensee a copy of the respective Content in electronic form without undue delay after receipt of the full payment pursuant to Section 5 of this Agreement, but no later than three business days thereafter.

2.2 The Licensee shall grant the Licensor access to the App free of charge at any time to enable the Licensor to monitor the Licensee's obligations. If an access code is required for the App, the Licensee shall provide it to the Licensor without undue delay after the Content has been incorporated into the App, but no later than three business days thereafter.

 

3. Guarantee of Ownership of Rights, Indemnification of the Licensee

3.1 The Licensor warrants that the Licensor is the owner of the rights transferred and that it is possible for the Licensor to effectively grant the Contract Rights specified to the Licensee in Section 1 of this Agreement. The Licensor also warrants that the Photographs are free from any third party rights that might conflict with the grant of rights under this Agreement. Furthermore, the Licensor warrants that the Content has already been published and that the author will not take action against any publication by the Licensor. The Licensor guarantees that the use of the Content within the scope of this Agreement does not violate any personal rights of third parties and the Content has been taken and can be used by the Licensor in compliance with the provisions of applicable data protection laws, in particular that persons depicted agree to the use of the Photographs under this Agreement. 

3.2 Unless specifically requested by the Licensee, no data or material or other rights of third parties (collectively hereinafter, the “Third Party Materials”) may form a part of any Content. If any such third party rights would form part of any Content or would be capable of enhancing the benefits pertaining to the use of the Content or would be otherwise necessary for use in conjunction with any Content in order for this Content to be freely used and/or exploited by the Licensee, then the Licensor will obtain the Licensee’s consent (in writing or via email) prior to the inclusion of such Third Party Materials in the Content and will provide to the Licensee the third party licensing terms. The Licensee will consider whether to obtain a license from the relevant third party for the inclusion of third party material in the Content and will only give the Licensor the required consent once an appropriate license has been agreed. Consent for the inclusion of third party material in the Content may be provided or rejected by the Licensee, as determined by the Licensee in its sole reasonable discretion. Unless specifically agreed otherwise hereunder, the Licensor represents and warrants that no Third Party Materials will be necessary for use in conjunction with any Content in order for this Content to be freely used and/or exploited by the Licensee.

3.3 Upon first request, the Licensor shall indemnify the Licensee against all claims of third parties, in particular claims for infringement of copyright and personal rights, which may be asserted against the Licensee in connection with the exercise of the Contract Rights. The Licensor shall notify the Licensee without delay of any infringements of the Contract Rights of which Licensor becomes aware. The Licensee shall be entitled to take suitable measures to defend themselves against claims by third parties or to pursue their rights. The Licensor shall coordinate their own measures with the Licensee in advance. The indemnification shall also include reimbursement of the costs incurring or incurred by the Licensee as a result of legal prosecution/defense.

3.4 The exemptions set forth in Section 3.2 shall not apply if the third party's claim results from the Licensee's use of the Content contrary to the provisions set forth in this Agreement.

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4. Term and Termination

4.1 This Agreement shall run for an indefinite period from the date of the transfer of the Contract Rights pursuant to Section 1 of this Agreement.

4.2 The parties waive their right to ordinary termination. The right to extraordinary termination shall remain unaffected.

4.3 Section 1.11 to the Agreement shall remain unaffected.

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5. Revenue Share Model and Payment Modalities

5.1 Of the net revenues (total revenues excluding statutory VAT, but without deduction of other costs) generated by the Licensee from exploiting of the Content licensed under this Agreement, specifically if a booking transaction occurs after a direct result of the interaction with the content in the same user session, the Licensor shall receive a share in the amount of 10 %.

5.2 This remuneration relates to Content in which the Licensor is the sole owner of rights. If rights of other right owners must be obtained for the contractual use of a Content, the Licensor’s revenue share is reduced to the corresponding fraction. 

5.3 Excluded from this compensation obligation are those amounts that are to be used by the Licensee for a specific purpose as transitory items or that must be repaid by the Licensee to third parties.

5.4 The revenue share shall be settled and paid on a semi-annual basis, i.e. as of June 30 and December 31.

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6. Confidentiality

6.1 The Parties undertake to treat any information, documents, items, materials, substances or electronic files disclosed by one Party to the other Party in written, electronic, oral or any other form, which is marked confidential by the disclosing Party or is by its nature to be treated as confidential (hereinafter the “Confidential Information”) as confidential and to use them exclusively for the purposes of the performance of this Agreement. 

6.2 The disclosure of the Confidential Information of the disclosing Party by the respective recipient to third parties is only permitted to the extent that this is necessary for the performance of this Agreement, provided that the third party has committed itself to confidentiality vis-à-vis the Party making the Confidential Information available to the third party or is bound to confidentiality for professional reasons. Legal disclosure obligations remain unaffected. The respective Party making the Confidential Information available to the third party shall be responsible for ensuring that the obligations of this Agreement are also observed by such third parties. The Party making the Confidential Information available to the third party shall be liable for breaches of the confidentiality obligations under this Agreement by such third parties as if they were its own breach.

6.3 Each Party undertakes to protect the Confidential Information of the respective other Party by taking appropriate security measures.

6.4 The foregoing obligations shall not apply to information of which the receiving Party can prove that it (i) was or is available to the public in a lawful manner and in a manner not in breach of the provisions of this Agreement, (ii) was previously known to the receiving Party and was available to it without restriction, (iii) was disclosed to the receiving Party by a third party authorized to do so, or (iv) was developed by the receiving Party independently and without use of the Confidential Information disclosed by the disclosing Party.

6.5 The respective receiving Party undertakes to completely and permanently destroy all documents and records containing Confidential Information of the respective other Party or, in the case of electronic data, to permanently delete such data immediately after termination of this Agreement. This shall not affect any statutory storage and archiving obligations.

6.6 After termination of this Agreement, all rights and obligations of each Party with respect to the Confidential Information of the respective other Party shall continue to apply for a period of ten (10) years.

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7. Final Provisions

7.1 Each Party shall bear its own costs incurred in connection with the execution and performance of this Agreement, unless expressly agreed otherwise in this Agreement.

7.2 This Agreement fully reflects the agreement between the Parties regarding the subject matter; no oral or other side agreements exist. Unless expressly agreed otherwise in this Agreement, all previous agreements between the Parties regarding the subject matter shall be fully replaced by this Agreement with effect from the effective date of this Agreement.

7.3 Amendments or additions to this Agreement shall require written form to be effective, unless a stricter form is required under mandatory law. The same applies to the waiver of this written form requirement. Unless expressly agreed otherwise in this Agreement, e-mails do not comply with this written form requirement. The written form requirement under this Agreement shall be deemed to have been met when the copy of a declaration is being transmitted by telecommunications (e.g. as an attachment to an e-mail) and that copy contains the signature of the person making that declaration, unless a stricter form is required under mandatory law.

7.4 Neither Party is entitled to transfer this Agreement or to assign rights or obligations under this Agreement to a third Party without the prior written consent of the other Party.

7.5 This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding the conflict of laws rules of private international law. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

7.6 Exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be Berlin, Germany, unless otherwise required by mandatory law.

7.7 Should any provision of this Agreement be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions of this Agreement shall not be affected. The same shall apply if and insofar as a gap in this Agreement becomes apparent. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to or corresponds to what the Parties economically intended or would have intended according to the spirit and purpose of this Agreement, had they considered this point.

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If you have any questions on these Terms and Conditions, please check our FAQs or contact us at creators@beautifuldestinations.com.