Terms and conditions of use of Berlin Partner GmbH for the www.be.berlin.de website
1. Provider and object of use
The website under the domain www.be.berlin.de (hereinafter referred to as the "website") is operated by Berlin Partner GmbH, Ludwig Erhard Haus, Fasanenstrasse 85, 10623 Berlin (hereinafter referred to as "Berlin Partner"). The website is part of a marketing campaign entitled "be Berlin/sei Berlin" (hereinafter referred to as the "campaign") that Berlin Partner is carrying out in cooperation with partners of the Berlin Holding Gesellschaft für Hauptstadtmarketing mbH for the Presse- und Informationsamt of the Land Berlin/Senatskanzlei (Press and Information Office of the Senate Chancellery of the State of Berlin). As part of the campaign, the mayor of Berlin has asked Berlin’s citizens to tell their individual success stories and publish them on the website and in other media.
The website enables every visitor to the website (hereinafter referred to as the "users") to obtain information about the campaign, use the related services, (hereinafter referred to as the "services") and in particular to submit (hereinafter referred to as "submission") his own success story, photos, audio and/or film recordings (hereinafter referred to as the "content"; see paragraph 3) to Berlin Partner for publication on the website (hereinafter referred to as "publication"). As a result of this publication, a contract of use will come into existence under the terms of paragraph 4 between Berlin Partner and the user and the user will grant Berlin Partner certain rights and powers in respect of the content (hereinafter referred to as "rights and powers") under the terms of paragraph 5.
2. Scope of the contract
These terms and conditions of use will apply to all users of the website.
By using the website, users agree to these terms and conditions of use. If the user does not agree to these terms and conditions of use, he must immediately stop using the website.
Berlin Partner reserves the right to change or adapt (hereinafter referred to as "changes") these terms and conditions of use at any time, without stating a reason and with future effect. Berlin Partner will inform users about changes two weeks at the latest before these come into effect through publication on the website.
If the user has already submitted content to Berlin Partner for publication, Berlin Partner will inform the user of the changes by e-mail via the e-mail address provided by the user when submitting the content. Users also have the right to object to the changes, with the consequence that the terms and conditions of use will continue to apply in their previous form. If the user does not object to the changes within one month after they come into effect, he will be presumed to have consented to the changes. Berlin Partner undertakes to inform users of the consequences of failing to raise such objections when users are informed of the changes.
3. Content (success stories, photos, audio and film recordings and materials)
Users can submit their own success stories (hereinafter referred to as "success story") to Berlin Partner. The success story should, in accordance with the campaign’s objectives, depict a special relationship between the user and the city of Berlin, present the user as an ‘ambassador’ for Berlin in a figurative sense, show the city’s facets and opportunities, and create a positive impression of the city in accordance with the goals of the campaign (hereinafter referred to as "campaign goals").
The success story should especially deal with events experienced by the user himself; whereby the user affirms that to the best of the user’s recollection the success story actually took place as the user describes it and that the success story is based on real events.
The success story should be submitted in text form using the form provided on the website (see paragraph 4). Berlin Partner is entitled to set a maximum number of characters for this purpose.
As well as success stories, users can submit photos, audio and/or film recordings (hereinafter referred to collectively as the "recordings") to Berlin Partner for publication. The recordings should refer to the success story and support its content and/or message.
The film and audio recordings may not contain music to which third parties hold rights (in particular copyright and ancillary copyright rights of composers, lyricists, music publishers, contributing artists and/or record companies). Without any prejudice to other rights to refuse to publish content, Berlin Partner also expressly reserves the right not to publish recordings containing music. Berlin Partner explicitly points out that there is a fundamental presumption that the rights to every musical work on image and/or sound media, on the Internet or otherwise published, are administered by the German Music Authors' Society (GEMA) and that regular further rights to recordings of contributing artists and creators of sound media and of music publishers, must all be acquired before use, where applicable, usually at a cost. Holders of such rights may be entitled to claim damages from users in case of unauthorized use of musical works and recordings. Berlin Partner reserves the right to lodge claims for damages against users in such cases if Berlin Partner is held liable for the unauthorized use of musical works and recordings. This will not apply if the user is not responsible for breaking the law.
Berlin Partner is entitled to examine content at any time, but especially before publication, to check that it conforms with the campaign’s purpose and for possible violations of the law. There shall be no right to the publication of content by Berlin Partner.
4. Submitting content to Berlin Partner, contract of use
To submit content to Berlin Partner for publication via the website, users must click on the "Eigene Geschichte hochladen/upload your own story" button, after which a window with a submission form (hereinafter referred to as the "form") will open. The user then enters his success story into the form, adds any recordings or materials and enters his personal data. After explicitly accepting these terms and conditions of use, the user can submit the content to Berlin Partner. The user will then receive an e-mail from Berlin Partner confirming that Berlin Partner has received the form (1st e-mail). The user must in turn confirm receipt of this e-mail by activating the link sent in the e-mail (hereinafter referred to as "confirmation"). By confirming receipt, the user consents to the release of the content on the website. The user will then receive a further e-mail informing him that his content will be examined by editors (2nd e-mail). If Berlin Partner regards the content as suitable for publication, Berlin Partner will wholly or partly release the content on the website (hereinafter referred to as the "release"). The user will be informed of the release in another e-mail (3rd e-mail). This release shall result in the conclusion of a contract (hereinafter referred to as the "contract of use") between Berlin Partner and the user on the publication and use of the content, which shall be based on these terms and conditions of use. Berlin Partner is entitled to refuse to release content without stating a reason. There shall be no right to conclude the contract of use.
If the user has not reached the age of 18, the release of content requires the consent of all his statutory representatives (both parents, legal guardians etc.; hereinafter referred to as "statutory representatives"). If Berlin Partner determines while examining a form sent in by a user that the user has not reached the age of 18, Berlin Partner will send the user a form for the obtaining of such consent (hereinafter referred to as "form"), which his statutory representatives can use to provide their consent to the release of content and to these terms and conditions of use. The user must print out the form, have it signed by hand by his statutory representatives, and send the signed form by post and/or fax and/or scanned and sent by e-mail to the editors at:
Berlin Partner GmbH
be Berlin Redaktion
Ludwig Erhard Haus
Only after receiving the form will Berlin Partner consider the release of the content.
Personal data entered in the formula must be complete, true and up to date. If the user’s data changes after the form is submitted to Berlin Partner, the user shall promptly inform Berlin Partner of these changes at the following e-mail address: redaktion(at)be.berlin.de.
User are entitled to revoke their consent to the conclusion of the contract of use without stating any reason within two weeks after concluding the contract by sending an e-mail to redaktion(at)sei.berlin.de. Punctual dispatch of this revocation will be sufficient as proof of compliance with the deadline set. Berlin Partner will then promptly delete the content sent in by the user.
Use of the website and the submission and publication of content to and through Berlin Partner shall be free of charge.
Berlin Partner reserves the right to offer services on its website for which a cost is charged. The prices and conditions of each of these will be shown completely to users before use.
5. Granting of rights and the user’s consent to publication
The user hereby grants Berlin Partner and its legal successors, agents and assignees, and licensees permission to use his name, his image, his voice and the success story and/or the recordings and materials without any restriction as to space, time and content in connection with the campaign on the website and also grants Berlin Partner to this extent non-exclusive, transferable usage rights to the success story and/or the recordings and materials. This includes in particular the use of reproduction methods, lectures, performance, presentation, public access and showings (in particular audio/video-on-demand), public display, broadcast and storage in databases in processed or unprocessed and analog and/or digital form, wholly and/or in part, commercially and/or non-commercially, in all known and/or unknown types of use.
Within the scope of the rights and powers granted under the terms of paragraph 5.1, Berlin Partner is also entitled to utilize the content, in particular the success stories, in other media, online or offline and/or to allow third parties to utilize it (e.g. in print media, website, TV, radio, cell phone, full billboard, large-scale, city light poster (street and/or subway), video board, city light board, large-scale posters, freecards, infoscreen, Berliner Fenster, Megaflag, etc.) and also grants Berlin Partner to this extent non-exclusive, transferable usage rights to the success story and/or the recordings.
Berlin Partner is entitled to process the success story and/or recordings, wholly or in part, in keeping with the personal rights of the parties to the contract and the intellectual character of the content, and specifically to edit, shorten and/or expand it, to highlight and leave out parts, and/or to emphasize them differently, and/or to link it with other texts, photos and films.
The user also consents to the deletion of the content from the website if Berlin Partner regards this as necessary, in particular, but not exclusively, because the content impinges on the rights of third parties and/or because Berlin Partner does not regard further retention of the content on the website as worthwhile, e.g. due to a lack of interest of visitors to the website.
Berlin Partner may, in exercising the rights and powers granted to Berlin Partner under these terms and conditions of use, resort to third parties without requiring the consent of the user to do so.
All performance by the user under the terms of this agreement shall be provided free of charge so as to support the campaign and the city of Berlin.
6. Termination of the contract of use, breaches of terms and conditions of use
The user is entitled to terminate the contract of use at any time by sending an e-mail to Berlin Partner redaktion(at)be.berlin.de
Berlin Partner is entitled to terminate the contract of use at any time within a period of 14 days.
Berlin Partner is also entitled to terminate the contract of use after an ineffective warning with immediate effect where it has good cause to do so; a warning shall be superfluous if the relationship of trust is so seriously impaired (e.g. through the provision of false personal data by the user), that immediate termination of the contract appears justified.
The rights and powers of Berlin Partner under paragraph 5 shall remain unaffected by the termination of the contract of use by a party to the contract. Berlin Partner is also in particular entitled to retain a copy of the content for storage in a database after deletion of content from the website and/or termination of the contract of use.
Berlin Partner reserves the right to delete previously published content that violates valid laws and/or infringes the rights of third parties (in particular copyright and personal rights).
If the user breaches these terms and conditions of use, Berlin Partner explicitly reserves the right to commence legal proceedings, in particular to lodge claims for damages and/or bring criminal charges.
7. Protected rights of Berlin Partner
The website is protected by copyright and trademark laws and/or other protective rights and is covered by the Copyright Law and other protected rights (hereinafter referred to as "protected rights"). Berlin Partner is the legal owner and/or license holder of all rights to the website and its service.
The user is not permitted to download content of any kind from the website and/or to copy and/or otherwise reproduce it, unless this is explicitly permitted on the website and/or made possible (e.g. the ability to send a link to a success story by means of a function provided for this purpose on the Website).
Changes or modifications to the website or parts of the website are not permitted.
8. Copyright, evidence of violations of the law
The sending of content protected by copyright, trademark rights, personal rights or other rights and laws to Berlin Partner for publication without previously obtaining the written consent of the holder of these rights (such sending hereinafter referred to as "violation of the law") is prohibited. If Berlin Partner becomes aware that a user has violated the law, Berlin Partner will immediately delete the relevant content.
If a user is of the opinion that content represents a violation of the law, he can inform Berlin Partner of this by e-mail at the following address redaktion(at)sei.berlin.de. Holders of rights who believe that their rights are violated by the publication of a user’s content on the website or in any other way can also inform Berlin Partner of this by sending an e-mail to the following address redaktion(at)sei.berlin.de and including the following information:
- a description of the rights violated in the opinion of the holder of the rights;
- description of the content that in the opinion of the holder of the rights violates his rights;
- the address, telephone number and e-mail address at which Berlin Partner can contact the holder of the rights;
- a declaration by the holder of the rights that he believes in all conscience and in good faith that the use objected to is not authorized by the holder of the rights or legally permitted.
9. Exclusion of warranty and limitation of liability
Users use the website and its services at their own risk. The website and services are offered to the user in the form and availability provided. Berlin Partner provides no guarantees that the website and/or the services will be available at all times in updated form without disruption, promptly, securely and without error, or will be suitable for use for specific purposes, or for the attainment of certain results.
Berlin Partner provides no guarantees that content on the website or on other linked sites is correct or complete. Users’ content does not reflect the opinion or philosophy of Berlin Partner. The presence of links to other websites allows no conclusions to be drawn about the approval or recommendation of the linked website by Berlin Partner. Berlin Partner has no influence over the content of external linked sites and is not liable for them. Berlin Partner is also not liable for third-party advertising published on the website or for the goods or services offered therein.
Should Berlin Partner become aware of violations of the law arising from the content, links to third-party websites, or from advertising published on the website, Berlin Partner will immediately delete any such content, links or advertising.
Berlin Partner accepts no liability for errors, omissions, disruptions, deletions, defects, delays in operation or transfer, failures of communication lines, or for unauthorized access, theft, destruction or modification of users’ content. Berlin Partner shall also not be liable for problems or technical problems connected with telephone networks or lines, online systems, servers or providers, computer equipment, software nor for the failure of e-mail systems or players due to technical problems or data bottlenecks in the Internet and/or one of the services where these are beyond the control of Berlin Partner.
Berlin Partner will be liable for damages arising from injury to the body, life or health that are caused by a deliberate or negligent breach of duty by Berlin Partner or a legal representative, agent or servant of Berlin Partner.
Berlin Partner will only be liable for other damages where these are caused by a deliberate or grossly negligent breach of contract by Berlin Partner or a legal representative, agent or servant of Berlin Partner.
Berlin Partner will only be liable for simple negligence in case of a breach of essential contractual obligations (cardinal obligations), inasmuch as the damages are in typically connected with this type of contract and foreseeable. Cardinal obligations are those obligations towards the user that Berlin Partner must guarantee in accordance with the sense and purpose of the contract, whose fulfillment enables the orderly performance of the contract, and on the observance of which the user may regularly rely.
Liability under the provisions of the Product Liability Act remains unaffected.
Where the liability of Berlin Partner is excluded, this exclusion shall also apply to companies affiliated with Berlin Partner and to the liability of personnel, employees, staff, representatives, partners, and servants and agents of Berlin Partner and/or affiliated companies.
Claims for damages against Berlin Partner will be barred after the expiry of 12 months from the date on which they arise, unless they are based on deliberate or grossly negligent acts or omissions.
11. Release from liability
The user affirms that no rights of third parties, in particular no copyright and/or personal rights are violated by the content submitted by him.
The user undertakes to release and indemnify Berlin Partner and companies connected with Berlin Partner from legal action, damages, obligations, losses and/or claims that are made due to or in connection with (i) his use of and access to the website; (ii) his violations of these terms and conditions of use and/or (iii) violations of the rights of third parties (in particular copyright, trademark rights, personal rights) by the user and/or through the content submitted by the user. The obligation to release from liability includes the necessary costs of defending such claims, costs of legal defense, and in particular lawyers’ costs. The obligation to release from liability will not apply if the user is not responsible for the violation of the rights.
The user is obliged, regardless of his fault, in case of claims by third parties, to immediately, truthfully and completely to provide all information required for the examination and defense of such claims.
12. Data protection
Berlin Partner will handle the user’s data sensitively and responsibly and treat it as confidential. Berlin Partner will precisely comply with all data protection laws and other regulations, in particular with the German Teleservices Act (Telemediengesetz), Federal Data Protection Act (Bundesdatenschutzgesetz) and the data protection provisions of the Telecommunications Act (Telekommunikationsgesetz) (hereinafter referred to as "data protection law").
Berlin Partner will only make the user’s personal data provided by the user to Berlin Partner during or after the submission process available to third parties if the user has consented to such transfer or such transfer is permitted under the terms of data protection laws. The user also hereby consents now to the transfer of his personal data if he has unlawfully and/or illegally submitted content to Berlin Partner and Berlin Partner is required by the holder of the rights and/or other beneficial owners to supply information in this matter.
13. Applicable law and jurisdiction
The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For business people, legal persons under public law, and separate estates under public law, the place of jurisdiction shall be Berlin.
Should any clause of these terms and conditions of use be or become wholly or partly invalid, or if these terms and conditions of use have any gaps, the validity of the remaining terms and conditions of use shall remain unaffected.