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1.1 These General Terms and Conditions for Rights Assignment (hereinafter "GTC") shall apply to all contracts between RD LEGAL GmbH, Saarbrücker Str. 18, 10405 Berlin (hereinafter "COPYTRACK") and users (hereinafter "Right Holders"; together also referred to as "Parties") of the platforms COPYIDENT BRANDSIDENT operated by MEDIA-IDENTGmbH (hereinafter each individually referred to as "Platform" or collectively as "Platforms") concerning the assignment of rights to COPYTRACK for the enforcement of the Right Holders' claims.
1.2 Any general terms and conditions of the Right Holder shall only become part of the contract if COPYTRACK expressly agrees to them. The inclusion of general terms and conditions of the Right Holder is hereby expressly objected to.
2.1 Cases of potential legal infringements reported via COPYIDENT and BRANDSIDENT represent an invitation to the Right Holder to submit an offer to conclude a contract for the assertion of their claims (contract for the performance of services), and not a binding offer by COPYTRACK.
2.2 The Right Holder may initiate the commissioning of COPYTRACK to assert their claims by selecting the respective content concerned (e.g., image, trademark, etc.), clicking the "Commission with costs" button, and fully entering the requested data on the respective Platform. The legally binding offer to conclude the contract for the performance of services is made by the Right Holder by clicking the "Commission with costs" button. Screenshots of the legal infringement are only created upon submission of the offer – COPYTRACK shall not take any evidence preservation measures beforehand.
2.3 The offer is accepted by COPYTRACK by changing the status of the accessible case to "In Progress."
2.4 COPYTRACK is not obligated to accept an offer from the Right Holder. In particular, COPYTRACK may refrain from accepting the offer if the prospects of success in asserting the claims are low due to factual, legal, or economic reasons.
3.1 The Right Holder can use the Platforms to detect unauthorized use of images and/or trademarks to which they hold rights on the internet. These uses are displayed to them on the respective Platform. If the Right Holder believes that one of the uses detected by a Platform operated by COPYTRACK infringes their rights, the Right Holder commissions COPYTRACK to issue a retroactive license for the specific use or to assert the resulting claims.
3.2 Following the commissioning, COPYTRACK shall submit an offer to the infringer to conclude a license agreement with a license fee determined by the Right Holder ("retroactive licensing"). The amount of the license fee corresponds to the fee that the Right Holder and a third party would have reasonably agreed upon for a comparable use in terms of type and scope, considering the circumstances of the specific image and/or trademark use (license analogy). If the infringer accepts the offer and pays the requested license fee, COPYTRACKshall grant the infringer a simple, non-exclusive, territorially unrestricted, limited in content and time, non-sublicensable, non-transferable right of use, without the obligation of naming the author, for the reproduction and public display of the image and/or trademark on the infringer's website where the infringement occurred. The license shall commence from the point in time when, according to COPYTRACK's knowledge, the copyright infringement first occurred. The scope of the license is conclusively regulated in the General Contractual Terms for COPYTRACK.
3.3 If the prospects of success are appropriate, COPYTRACK shall, at its own discretion and expense, assert a claim for damages, which is usually calculated according to the license analogy, and, where possible, further claims, in particular claims for injunctive relief and information, against the infringer, or have them asserted by third parties. If COPYTRACK considers enforcement by the Right Holder themselves more suitable and/or promising, or if it is legally required, COPYTRACK shall offer the Right Holder a cost assumption for legal enforcement in the name of the Right Holder (litigation funding agreement), or arrange a comparable agreement with third parties to ensure that legal enforcement poses no financial risk to the Right Holder (cost risk assumption). The terms of the cost assumption shall be subject to a separate agreement. COPYTRACK has the sole discretion to decide whether and how to assert the damages claim. COPYTRACK is entitled to offer the infringer from the outset the choice between retroactive licensing pursuant to clause 3.2 and payment of damages.
3.4 COPYTRACK does not owe a specific result. The Right Holder acknowledges that the successful enforcement of claims and realization of payments from infringers depends on various factors prescribed by the respective legal systems and beyond COPYTRACK's control. COPYTRACK assumes no guarantee for the successful enforcement of claims or the amount of payments. Furthermore, the success of payments depends on the infringer's solvency. This is beyond COPYTRACK's control. COPYTRACK shall not provide any services prohibited by laws or regulations of other countries.
3.5 COPYTRACK is entitled, at its own discretion, to deviate from the license fee set by the Right Holder and also to conclude agreements that provide for a lower license payment if COPYTRACK deems this appropriate or conducive to a swift amicable settlement, or if the originally requested amount cannot be obtained for legal, factual, or economic reasons. The same applies accordingly to the damages asserted against the infringer. COPYTRACK is entitled to conclude installment payment agreements with the infringer.
4.1 The Right Holder commissions COPYTRACK and, with such commissioning, assigns their claims arising from the respective infringements (main and ancillary claims) to COPYTRACK for the purpose of collection to the extent permitted by law and authorizes COPYTRACK to enforce them in court. COPYTRACK accepts the assignment. COPYTRACK is entitled to disclose the assignment and to notify the infringer of the infringement and the identity of the Right Holder.
4.2 COPYTRACK is authorized to conclude retroactive license agreements with the infringer for the image in dispute and to assert corresponding license payments and demand payment to itself. For this purpose, the Right Holder grants COPYTRACK a simple, non-exclusive, worldwide, sublicensable, transferable right of use to the image in dispute for the duration of the contract. The Right Holder waives the assertion and enforcement of claims arising from the omission of attribution or source citation vis-à-vis COPYTRACK and COPYTRACK's licensees.
5.1 The Right Holder represents and warrants that they are the holder of the exclusive image and/or trademark rights and that the content subject to the contract for the performance of services is free from third-party rights, in particular does not infringe any copyrights or other rights of third parties, such as design rights, trademark rights, or personal rights.
5.2 The Right Holder represents and warrants that all information provided when submitting the case, in particular regarding their identity, the content, the distribution channels of the content, their legal position, and the identity of the infringer, is truthful.
5.3 The Right Holder represents and warrants that the information provided regarding their usual licensing practice pursuant to clause 3.2 is to the best of their knowledge and that the stated values correspond to their usual licensing practice and that they can prove this by presenting appropriate evidence, e.g., unredacted invoices, price lists, or general terms and conditions previously used. If COPYTRACK incurs financial damage during the enforcement process due to inflated values that do not correspond to the verifiable licensing practice of the Right Holder, such damage shall be compensated by the Right Holder. The above provisions shall not apply if the Right Holder has no licensing practice and informs COPYTRACK thereof prior to or when submitting the case or uses a standard price specified by COPYTRACK.
5.4 If the Right Holder breaches their obligations pursuant to clauses 5.1 to 5.3, COPYTRACK is entitled to terminate the contract for the performance of services with immediate effect. Termination shall be deemed equivalent to COPYTRACK closing the case on the respective Platform. If COPYTRACK terminates the contract, COPYTRACK shall reassign the claims pursuant to clause 4.1 to the Right Holder. The Right Holder accepts the reassignment. Furthermore, COPYTRACK shall be entitled to compensation in the amount of 45% of the claim asserted against the infringer to cover the expenses incurred by COPYTRACK to date. The Right Holder is entitled to prove that no such expenses were incurred or that they are significantly lower than the stated flat rate.
5.5 The Right Holder shall also indemnify COPYTRACK against any pre-litigation or litigation costs incurred by COPYTRACK in this matter in a reasonable amount, provided that these were caused by circumstances attributable to the Right Holder. Further claims for reimbursement of expenses and damages by COPYTRACK remain unaffected.
5.6 The Right Holder shall indemnify COPYTRACK against all third-party claims arising from the breach of the above warranty, provided that the Right Holder is responsible for such infringement. In such a case, the Right Holder shall bear all costs incurred by COPYTRACK due to third-party claims. Reimbursable costs also include the costs of a reasonable legal defense, including court and attorney fees at the statutory rate.
5.7 In the event of such a third-party claim, the Right Holder is obliged to provide COPYTRACK immediately, truthfully, and completely with all information that may be required for examining the claims and for defense.
6.1 COPYTRACK is entitled, at its own discretion and in compliance with legal requirements, to initiate enforcement of the assigned claims of the Right Holder by third parties (e.g., collection agencies, lawyers), as well as any other out-of-court enforcement measures that are necessary and appropriate to realize payments from infringers. COPYTRACK is authorized to collect payments for the Right Holder (collection authorization).
6.2 COPYTRACK is entitled to take all measures that are suitable or necessary to enforce the Right Holder's claims or strengthen their legal position. This includes, in particular, the registration of the Right Holder's rights in governmental and private copyright registers in the name of the Right Holder.
6.3 Unless otherwise agreed, COPYTRACK shall conduct the proceedings in its own name based on the assigned rights and shall bear the litigation risk. COPYTRACK may terminate out-of-court or judicial actions at any time without stating reasons.
7.1 If COPYTRACK considers enforcement of the claims in the Right Holder's own name to be more promising, and the Right Holder accepts COPYTRACK's offer to conclude a litigation funding agreement or a cost risk assumption agreement with a third party affiliated with COPYTRACK pursuant to clause 3.3 and commissions a cooperation partner designated by COPYTRACK with the enforcement of their rights, COPYTRACK shall reassign the claims pursuant to clause 4.1 to the Right Holder. The Right Holder accepts the reassignment.
7.2 If COPYTRACK considers enforcement in the Right Holder's own name to be more promising or legally required and the Right Holder does not accept COPYTRACK's offer to conclude a litigation funding agreement or a cost risk assumption agreement with a third party affiliated with COPYTRACK pursuant to clause 3.3, COPYTRACK may choose whether to continue asserting the Right Holder's claims in its own name or to terminate the contract for the performance of services with immediate effect. If COPYTRACK terminates the contract, COPYTRACK shall reassign the claims pursuant to clause 4.1 to the Right Holder. The Right Holder accepts the reassignment. Furthermore, COPYTRACK shall be entitled to compensation in the amount of 45% of the claim asserted against the infringer to cover the expenses incurred by COPYTRACK to date. The Right Holder is entitled to prove that no such expenses were incurred or that they are significantly lower than the stated flat rate. Termination shall be deemed equivalent to COPYTRACK closing the case in the COPYTRACK app.
7.3 If COPYTRACK terminates the contract for the performance of services pursuant to clause 7.2, COPYTRACK shall, at the Right Holder's request, provide the Right Holder with the evidence of use secured by COPYTRACK to prove the infringement, in particular screenshots of the use of the image and/or trademark on the infringer's website, in electronic form against payment of the flat-rate compensation specified in clause 7.2. The Right Holder shall not be entitled to any further claims for the release of documents, in particular correspondence conducted by COPYTRACK or a third party commissioned by COPYTRACK with the infringer. COPYTRACK reserves the right to hand over documents to the Right Holder if the latter credibly demonstrates that they are required for legal proceedings.
The Right Holder undertakes to support COPYTRACK in the provision of all contractual services to the best of their ability and comprehensively, in particular by timely provision of necessary or requested information, documents, and content, as well as immediate notification of any changes to such information. This particularly includes the obligation to inform COPYTRACK of changes to the Right Holder's hardware and software environment.
The Right Holder shall ensure that they and their employees involved in the contractual services with COPYTRACK possess the required professional competence and availability to ensure successful cooperation.
The Right Holder is obliged to promptly provide documents requested by COPYTRACK. This includes, in particular, the general confirmation of the commissioning of COPYTRACK, the case-specific confirmation of the assignment and confirmation of authorship or confirmation of ownership of rights, which must be submitted in original signed form and will be sent by COPYTRACK to the Right Holder by email to the address stored in the customer account on the respective Platform. If the Right Holder derives their rights from third parties (e.g., the author), they are obliged to provide COPYTRACK with court-usable proof of the chain of rights, e.g., in the form of a written declaration by the original Right Holder.
If the Right Holder fails to meet the obligations stated in clauses 8.1 and 8.2 within 28 days of the first request in text form (email, in-app, or fax) by COPYTRACK for reasons attributable to them, COPYTRACK is entitled to terminate the contract for the performance of services with immediate effect. Termination shall be deemed equivalent to COPYTRACK closing the case on the respective COPYTRACK Platform. If COPYTRACK terminates, COPYTRACK shall reassign the claims pursuant to clause 4.1 to the Right Holder. The Right Holder accepts the reassignment. Furthermore, COPYTRACK shall be entitled to compensation in the amount of 45% of the claim asserted against the infringer to cover the expenses incurred by COPYTRACK to date. Further claims for reimbursement of expenses and damages by COPYTRACK remain unaffected.
If COPYTRACK closes the case pursuant to clause 8.4, the Right Holder shall also indemnify COPYTRACK against any pre-litigation or litigation costs incurred by COPYTRACK in this matter.
The Right Holder undertakes to initially offer COPYTRACK any legal infringement found via the Platforms for the assertion of resulting claims. Only if COPYTRACK refuses to conclude a contract for the performance of services shall the Right Holder be entitled to assert the claims themselves or through third parties.
The Right Holder undertakes to thoroughly examine the factual and legal situation before submitting a case. If COPYTRACK has to close a case for reasons the Right Holder knew or should have known or which were obvious to them, for example, because a valid license existed and the Right Holder could have recognized this, COPYTRACK is entitled to charge the Right Holder for the expenses incurred by COPYTRACK up to that point.
The Right Holder shall not, while COPYTRACK is commissioned, simultaneously engage third parties for retroactive licensing, amicable settlement, or enforcement of claims from the same infringement, nor shall they themselves negotiate with the infringer, conclude retroactive licensing agreements, enforce claims against the infringer, or amicably settle such claims.
If the Right Holder breaches their obligations under clause 9.1, COPYTRACK is entitled to terminate the contract for the performance of services with immediate effect. Termination shall be deemed equivalent to COPYTRACK closing the case on the respective COPYTRACK Platform. If COPYTRACK terminates, COPYTRACK shall reassign the claims pursuant to clause 4.1 to the Right Holder. The Right Holder accepts the reassignment. Furthermore, COPYTRACK shall be entitled to compensation in the amount of 45% of the claim asserted against the infringer to cover the expenses incurred by COPYTRACK to date. The Right Holder shall also indemnify COPYTRACK against any pre-litigation or litigation costs incurred by COPYTRACK in this matter. Further claims for reimbursement of expenses and damages by COPYTRACK remain unaffected. Furthermore, the Right Holder shall indemnify COPYTRACK against claims of third parties that arose in connection with the commissioning of COPYTRACK by the Right Holder.
The Right Holder is obliged to assign or pledge the claims from image rights infringements, which COPYTRACK was commissioned to enforce, to third parties only with COPYTRACK's written consent.
COPYTRACKshall receive a success-based remuneration in the amount of the agreed percentage of the enforced payments (hereinafter "Success Fee") for its services. The calculation basis for the Success Fee is the amount paid by the infringer as license payment or damages on the principal claim, minus the costs incurred for enforcement, in particular costs for commissioning lawyers, legal service providers, external collection agencies, credit agencies, and court and enforcement costs, insofar as these are not borne by the infringer, as well as costs for the registration of image and/or trademark rights and (bank) transaction fees. If the enforcement costs exceed the amount paid by the infringer, COPYTRACK shall bear the excess costs. In this case, the Right Holder shall not be entitled to payment of the amount collected from the infringer. If the infringer does not allocate the payment to a specific purpose, COPYTRACK is entitled to use the received payments first to cover the enforcement costs.
The claim for the Success Fee also exists if the payment, due to the services provided by COPYTRACK under these GTC, is made in whole or in part to the Right Holder or is otherwise settled. The Right Holder is only entitled to offset the Success Fee against COPYTRACK if the counterclaim has been legally established or is not disputed by COPYTRACK.
The amount of the Success Fee depends on the method by which the claim was successfully enforced. Specifically, COPYTRACK calculates the following net percentages:
If only part of the claim initially asserted by COPYTRACK is realized, COPYTRACK shall calculate the Success Fee only on the enforced partial amount.
COPYTRACK is entitled to deduct the Success Fee owed to it by the Right Holder directly from the payments received by COPYTRACK, with Sec. 367 BGB applying accordingly. Third parties commissioned with the enforcement of claims by COPYTRACK or under the litigation funding agreement by the Right Holder are authorized to pay the amounts received from the infringer directly to COPYTRACK for settlement with the Right Holder.
The Success Fee shall become due upon disbursement of the amount received from the infringer, paid as license payment or damages. This amount shall be paid to the Right Holder once it has been fully posted by COPYTRACK; in the case of an installment agreement, after the final installment has been posted. If, due to the legal, economic, or factual situation, full payment is not to be expected, COPYTRACK may declare a waiver of the remaining open claim.
COPYTRACK shall only be obliged to provide a final statement and payout to the Right Holder once all documents required for the settlement have been received. This particularly applies to the SEPA account details. Costs incurred because the Right Holder fails to provide their account details or provides them incorrectly shall be borne by the Right Holder.
Interest and reminder fees incurred after the assignment of the principal and ancillary claims shall remain with COPYTRACK and shall not be paid out to the Right Holder. They shall not be included in the calculation of the Success Fee.
Any interest and reminder fees accrued before the assignment of the principal and ancillary claims shall not be asserted by COPYTRACK against the infringer.
Unless otherwise agreed in the offer, the contract shall be concluded for a minimum term of 12 months and may be ordinarily terminated with a notice period of three months to the end of the term without stating reasons.
If the contract is not terminated in due time, it shall be extended by a further period of 12 months, unless it is again ordinarily terminated with a notice period of three months.
Extraordinary termination for good cause remains unaffected. Good cause for COPYTRACK shall in particular exist if:
the Right Holder fails to fulfill their payment obligations despite a reminder; the Right Holder grossly or despite a reminder fails to fulfill their duties to cooperate or breaches them; there are objectively comprehensible indications that the Right Holder's ability to perform their contractual obligations is significantly impaired, for example because insolvency proceedings have been initiated over their assets or a corresponding application has been rejected due to lack of assets or not dismissed within three months as inadmissible or unfounded.
Unlimited liability: COPYTRACK shall be liable without limitation for intent and gross negligence as well as in accordance with the German Product Liability Act. In cases of slight negligence, COPYTRACK shall be liable without limitation for damages resulting from injury to life, body, or health.
Otherwise, the following limited liability shall apply: In cases of slight negligence, COPYTRACK shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on whose compliance the Right Holder may regularly rely (cardinal obligation). Liability for the slightly negligent breach of a cardinal obligation is limited in amount to the foreseeable damage typical for the contract at the time of conclusion. These limitations of liability shall also apply in favor of the employees, representatives, and vicarious agents of COPYTRACK.
The contract between COPYTRACK and the Right Holder and these GTC constitute the entire agreement between the Parties. Any oral collateral agreements do not exist.
Contracts concluded with COPYTRACK in electronic commerce shall not be stored after the conclusion of the contract and shall not be made accessible to the contracting party.
COPYTRACK reserves the right to amend these GTC if a change in the legal situation, supreme court rulings, or market conditions requires this. COPYTRACK shall send the amended GTC to the contracting party by email at least four weeks before they come into effect and shall point out the intended applicability of the new GTC and the user's right to object to their applicability. If the contracting party does not object to the applicability of the new GTC within this period or logs into the COPYTRACK services after the amended GTC come into effect, the new GTC shall be deemed accepted. COPYTRACK shall inform the users in an appropriate manner about the significance of the four-week period, the right of objection, and the legal consequences of remaining silent.
Amendments to these GTC must be made in text form (Sec. 126b BGB).
Should individual provisions of these Terms of Use be deemed invalid and/or void, the remaining provisions shall remain unaffected by the invalidity and/or voidness.
The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
The place of jurisdiction for all disputes arising from or in connection with contracts between COPYTRACK and the user shall be the registered office of COPYTRACK.