SERVICE LICENSE AGREEMENT
Last updated: 20 April 2021
This license agreement (“Agreement) is a legal agreement between BCaster Oy (“BCaster” or “Licensor”) and you or a legal entity represented by you (“you” or Licensee”). By accessing, using, ordering, subscribing or otherwise utilizing the Service the Licensee accepts these terms and conditions to be binding upon the Licensee. This Agreement describes the terms and conditions that apply to the use of the Service by the Licensee. You may not access or use the Service unless you agree to abide all the terms and conditions in this Agreement.
1. Overview of the Agreement and the Service
This Agreement provides a general description of the Service that BCaster provides to you.The Licensor has developed a technology platform (“Platform”) whereby Content Owners by using the User Interface for the Platform can record Content (including photographs, video clips and other user generated content) and upload it onto the Platform.
The Licensor provides a service (“Service”) whereby the Licensee is granted access to the Platform and uploaded Content via a dashboard and is further granted a right to use the said Content without having to individually negotiate with Content Owners.
2. User account and subscription
Before obtaining a right to use the Service you will need to register with BCaster by creating an account (“User Account”). Through creating the User Account, you are granteda limited right to use the Service for 7 days for testing purposes (“Test Period”). You can obtain full rights to use the Service under the terms and conditions of this Agreement by subscribing the Service in accordance with Section 4 of this Agreement (“Subscription”).
For clarification, the terms under Sections 11 (Confidentiality), 10 (Intellectual Property Rights) and 14 (Dispute Resolution) shall not only apply to you during the Test Period but shall be binding upon you even after the Test Period has ended without finalization of a Subscription of the Service.
3. Service and access to the Platform
BCaster provides the Service to you at the rates and for the fees described in the BCaster price list (“License Fee”). BCaster has the right to revise the License Fee at any time with 30 days advance notice before the revision becomes applicable to you.
Subject to the Subscription to the Service the Licensor grants you a right to access and use the Platform for the purpose of offering the Platform to be used by Content Owners. Please note that the Content reviewed and accessed during the Test Period are protected against further use and are released to your use only if you subscribe to the Service.
The Platform features a camera functionality that is taken into use for example by adding a ready-to-use user interface (“User Interface”) to the Licensee’s application, website, or other media channel, or by directly using BCaster application. The Content is uploaded through the User Interface or through BCaster application whereas the Content Owners simultaneously enter into a separate End-User License Agreement with the Licensor.
No license is granted to the source code of the Platform or its components and the Licensee shall not make any modifications to the source code of the Platform or its components provided to it by the Licensor. Furthermore, the Licensee shall not reverse engineer or otherwise render into human readable form the source code of the Platform orits components. All Intellectual Property to the Service or Platform not expressly transferred hereunder shall remain with the Licensor.
The Licensee may use the Content in their business activities and in connection with competitions, campaigns, events, and other promotional activities (“Events”), in media channels, and in digital channels, including the Service. The Licensee shall be liable to agree on the right to use or otherwise exploit, including compensation for the use, the Content that is uploaded to the Platform in connection with the Licensee’s Events and by assignment from the Licensee.
BCaster has the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use ofthe Services by posting such changes on their website or the Service. BCaster will inform you of any changes through the dashboard, via email, or through other reasonable means.The changes will come into effect immediately or upon a specific date as informed on the notification. By continuing to use the Service you accept the amended terms of this Agreement. You can access a copy of the current terms of this Agreement on BCaster’s website or dashboard at any time.
4. Subscription and payment service
The Subscription of the Service and payment of the License Fee are made through BCaster’s service provider’s, currently Stripe Payments Europe, Ltd.’s (“Stripe”), payment service (“Payment Service”). Additional terms and conditions may apply to using the Payment Service and Stripe or another payment provider used by BCaster may need to collect and process your personal data in order to finalize the Subscription, verify your payment of the License Fee or for other similar purposes. By subscribing to the Service, you accept and agree to the terms applicable to the Payment Service, which will form part of your agreement with BCaster. For clarification, BCaster does not have any liability over the data collected and processed by Stripe or any other payment provider through the Payment Service or for any malfunctions, errors or other defects concerning the Payment Service.
5. Content License
After you have finalized the Subscription of the Service the Licensor grants the Licensee, for the duration of this Agreement, a royalty bearing, limited, revocable, license to the Intellectual Property vested in the Content, excluding trademarks unless otherwise agreed in this Agreement, for the purpose of utilizing the Content in the Licensee’s commercial activities, including but not limited to promotional and monetization purposes, and a right to display to third parties the Content uploaded through the Platform on the Licensee’s website and other media channels. The Licensor undertakes not to grant rights in or access to the Content to any third parties without the permission of the Licensee.
The Licensee does not have the right to sub-license or assign the Content or rights therein to third parties without prior express consent from the Licensor, and no other rights in the Content are granted except those expressly mentioned in this clause.
For the purpose of this Agreement “Content” shall mean various media files, including but not limited to photographs, video clips and other user generated content, uploaded to the Platform by private persons (“Content Owner”) by using the Platform or functionalities of the Platform.
The Content and the Intellectual Property vested in the Content are owned by the Content Owners. The Licensor secures rights to use, including rights to sub-license the Content to Licensee, the Content from Content Owners though a separate End User License Agreement concluded between the Licensor and the Content Owners.
7. Trademarks and designs
Unless otherwise agreed between the Parties, the BCaster trademark shall be displayed onthe Platform on the Licensee’s application or website in the following way: “powered by BCaster®”. In addition, the User Interface includes a design or logo of BCaster which shall be used in compliance with good business practices and in accordance with possible separate instructions by the Licensor.
During the term of this Agreement, you may publicly identify BCaster as the provider of the Service to you and BCaster may publicly identify you as a user of their Service. Neitheryou nor BCaster will imply any untrue sponsorship, endorsement, or affiliation between you and BCaster. Upon termination of your User Account, both you and BCaster will remove any public references to the mutual relationship from their respective websites.
All other rights to and title in the trademarks owned by each Party shall remain with that Party.
8. Licensee’s Obligations
The Licensee shall not use the Platform or the Content in breach of the licenses granted hereunder, or in breach of any other section of this Agreement, the applicable law or good business practice.
The Licensee shall notify third parties of the Content Owners’ title in the Content in accordance with good business practice and applicable legislation in a manner that is deemed reasonable for the media in which the Content is used. Furthermore, the Licenseeshall not remove, modify, or hide any copyright notices or other indications of ownership, or remove, modify, or hide any technical or other authentication markers included in or with the Content.
The Licensee shall without delay remove Content from its website and destroy any copies of the Content if, for example, the Content allegedly breaches Intellectual Property of thirdparties, personal data regulations or legislation or is in breach of other applicable laws or public morality. Furthermore, the Licensor shall have the right to remove any such Contentfrom the Platform and/or the Licensee’s website without the Licensee’s consent.
9. Processing of Personal Data and Data Processing Agreement
The personal data of Content Owners processed in relation to the Service is processed for the purposes of the Licensee by BCaster. The Licensee is the data controller and BCaster is the data processor within the meaning of EU Regulation 2016/679 (“GDPR”) and other applicable European personal data and data privacy legislation. BCaster shall only process the personal data subject to a written agreement between the Parties, appended as AnnexA to the Agreement (“Data Processing Agreement” or “DPA”), and shall comply with the other obligations of a data processor under the GDPR. By entering into this Agreement, the Parties enter into the Data Processing Agreement. In the event Licensor and Licensee enter into a separate data processing agreement, said data processing agreement shall beapplied instead of the Data Processing Agreement appended hereto.
The Licensee authorizes BCaster to communicate, on its behalf, to Content Owners a privacy notice regarding data processing in the Service, such as the one provided on the BCaster website ( www.bcaster.com/privacy ).
In addition, BCaster is the data controller for the personal data of representatives of the Licensee. Details on the processing of their personal data is included in the BCaster Privacy Notice. An up to date version of the Privacy Notice can be found on the BCaster website.
10. Intellectual Property Rights
For the purpose of this Agreement Intellectual Property shall mean copyrights, including the right to transfer the copyrights and the right to alter the works protected by copyright,patents, utility models, registered and unregistered designs, registered and unregistered trademarks, trade secrets and know-how, data and information, and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing.
All rights to and title in the Service, Platform, and related Intellectual Property, shall remain the sole property of the Licensor, except in so far as expressly assigned to the Licensee hereunder. Title to the Content remains with the Content Owners, whereas rightsto the Content remain with Content Owner and Licensor except to the degree rights to the Content are assigned to the Licensee hereunder subject to the License Fee.
In this Agreement confidential information disclosed by either the Licensee or the Licensor(“Disclosing Party”) to the other party (“Receiving Party”) is referred to as “Confidential Information” and it means all proprietary and/or confidential information, including, but not limited to inventions, ideas, technical instructions, concepts, products, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, data, computer programs, marketing plans, customer names and other technical,financial or commercial information and intellectual properties, whether in written, oral, electronic or other tangible or intangible forms.
Each Party shall keep in confidence all Confidential Information received from the other Party and shall not disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than for the purpose of performance of its obligations under this Agreement. Notwithstanding the foregoing, the confidentiality obligation shall not be applied to any material or information which is generally available or otherwise public other than by a breach of this Agreement on the part of the Party receiving the confidential information. This obligation shall furthermore apply to employees of the Receiving Party, and to employees of a group company of the Receiving Party, and said Party shall be responsible for any breaches of Confidential Information by said group companies or employees as for its own.
12. Limitation of Liability
The Service is offered “as is” and “as available” and no specific results from using the Service are guaranteed. The Licensor is not liable for any direct or indirect damage or lost profit that can come from the usage of the Service, even when the Licensor has been notified of the possibility of such damage.
Neither Party shall be liable for indirect, consequential, or punitive damages incurred by the other Party hereunder or for damage or sanctions relating to Personal Data breaches incurred by the other Party hereunder.
DDue to the nature of the Service, the Service or Platform may be updated from time to time, or functionalities may be added or removed without prior notice. BCaster does not take responsibility over any harm that may be caused to you due to updates or other disruptions in the Service.
Neither Party will be liable for any delays in processing or other non-performance caused by telecommunications, utility, failures, or equipment failures or any other event over which the respective Party has no reasonable control.
13. Term and Termination
This Agreement is effective upon the date you first access or use the Service and continues until terminated by you or BCaster. You may terminate this Agreement by closing your User Account through the Platform and ceasing to use the Service. If you use the Service again, you are consenting to this Agreement and any amendments made to the Agreement. The Data Processing Agreement enters into effect upon the entry into force of this Agreement and shall expire upon the termination or expiry of this Agreement.
BCaster may terminate this Agreement or close your User Account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of BCaster, its trademark or Service) by providing you advance notice 10 days prior to the effective date of the termination. Furthermore, BCaster may with immediate effect terminate this Agreement and/or close your User Account in the event the User Account has been inactive for at least 12 months.
During the term of notice, you shall solely be liable for saving or uploading any Content or other information necessary for your future use of the Content. BCaster does not guarantee that any Content, information, or data accessed through your User Account would be saved or accessible after the termination of this Agreement or closure of your User Account.
Upon termination of this Agreement, you shall immediately cease to use or provide the Platform to Content Owners and cease to use the Content. Your obligation to pay any pending and unpaid License Fees shall survive the termination of this Agreement.
In case of your material breach of this Agreement, BCaster shall have the right to terminate this Agreement with immediate effect, and your right to upload or use any Content through your User Account shall cease immediately.
14. Governing Law and Dispute Resolution
This Agreement shall be governed by Finnish legislation, excluding its provisions on the conflict of laws.
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination, or validity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce. The number of arbitrators shallbe one, the place of arbitration shall be Helsinki, and the language of arbitration shall be English.
15. Contact Details and Support
If you have any questions or complaints relating to the Service, please contact our support team at firstname.lastname@example.org .
ANNEX A. AGREEMENT ON PROCESSING PERSONAL DATA IN THE BCASTER SERVICE (“PROCESSING AGREEMENT”)
BCaster Oy (Business ID 2798841-8), Eerikinkatu 28, 00180
Licensee of BCaster Service (“Licensee”) as defined in the Service License Agreement.
1.1. These terms shall be applied by and between BCaster and Licensee in the use of the Service by the Licensee in situations where BCaster acts as a data processor, i.e., with regards to Licensee’s Personal Data as defined in the BCaster Privacy Notice: www.bcaster.com/privacy.
1.2 These terms shall be applicable between BCaster and the Licensee in addition to the Service License Agreement entered into by the parties in force from time to time. In the event of a conflict between the terms of the Service License Agreement and these terms, these terms shall prevail unless otherwise mentioned below.
In addition to the definitions set forth in the Service License Agreement, the following definitions shall apply:
2.1. Personal data means any information relating to a private individual or their family or based on which such an individual can be identified.
2.2. Data processor means a party processing personal data on behalf of a data controller within the meaning of data protection legislation.
2.3. Data controller means a party that alone or jointly determines the purposes and means of the processing of personal data within the meaning of data protection legislation.
2.4. Data subject means a person whose personal data is collected and/or processed.
2.5. Licensee’s Personal Data means personal data for which the Licensee is the data controller.
3. Data controller and data processor; notifying data subjects of their rights
3.1. The Licensee is the data controller and BCaster is the data processor in processing theLicensee’s Personal Data under section 4 below. For the avoidance of doubt, not all personal data processed in connection with the Service is Licensee’s Personal Data, i.e., the data controller for certain other categories of data is either BCaster or the users of the service, as more closely detailed in BCaster’s Privacy Notice ( www.bcaster.com/privacy ).
3.2. Licensee authorizes BCaster to inform data subjects of the processing of Licensee’s Personal Data by notifying them via the BCaster Privacy Notice in force from time to time ( www.bcaster.com/privacy ). In the event the Licensee wishes to use its own privacy noticeinstead, the Licensee shall be responsible for notifying data subjects of its own privacy notice/privacy practices.
4. Purposes of processing personal data; description of personal data processed hereunder
4.1. The Licensee’s Personal Data to be processed under this data processing agreement is described in BCaster’s Privacy Notice (www.bcaster.com/privacy) or a separate privacy notice issued by the Licensee. In brief, this data consists of the names, contact information, and other identifying information of private persons using the Service (defined as “Content Licensee’s Personal Data” in the privacy notice referred to above). The purpose of this processing is to enable these private persons (called “Users” in the privacy notice) to share content for the use of the Licensee through the BCaster Service subject to a separate agreement between the Users and the Licensee, and to verify which Users have created/shared which content. The legal basis for processing is the performance of the aforementioned contract between the Users and the Licensee (GDPR Article 6(1)(b)), and the duration of processing is until 1 month has passed from the ending of the Service License Agreement.
5. General obligations of BCaster
5.1. BCaster shall comply with good data processing practices and the data protection principles and provisions set forth in the applicable data protection and processing legislation. BCaster undertakes that the Service shall comply with the requirements of saidlegislation and the Service License Agreement in force from time to time.
5.2. BCaster undertakes to implement the necessary technical and organizational measures in such a manner that Licensee’s Personal Data shall be appropriately protectedin accordance with BCaster’s processes and the requirements of the Service License Agreement. BCaster shall maintain processes and documentation required by the legislation and authority instructions in force from time to time for the protection of personal data. BCaster’s actions under this section shall be based on risk assessments by BCaster undertaken in order to ensure the ongoing confidentiality, integrity, availability, and resilience of the personal data.
5.3. BCaster shall process the personal data only to the extent and in the manner required in order to comply with the Licensee’s specific instructions and in order to provide the Service. BCaster shall neither use nor otherwise utilize the personal data processed on the basis of the Service License Agreement otherwise than for the purposes and to the extent required in order to comply with the agreement and the Licensee’s Personal Data shall not be disclosed to third parties or processed in BCaster’s own operations otherwise than in order to provide the Service to the Licensee and Licensee’s users.
5.4. BCaster shall nominate a contact person responsible for data protection in relation to the processing of the Licensee’s Personal Data.
5.5. BCaster shall provide to the Licensee all information necessary in order to demonstrate compliance with the duties of the data controller and data processor and in order to assess data protection performance and shall furthermore assist as separately agreed in drafting and maintaining descriptions and other documentation relating to the Licensee’s duties in return for compensation according to the price list in force from time to time.
5.6. A data subject shall have a right of access to personal data concerning her or him. The Licensee shall without undue delay notify BCaster of all requests for exercising data protection rights from data subjects. BCaster shall assist the Licensee in meeting its obligation to answer these requests. Such requests may, for example, require that BCasterassists in providing notifications or information to data subjects, in fulfilling the right of access of data subjects, in rectifying or erasing personal data, in implementing restrictionsto processing, or in transferring data subjects’ personal data from one system to another. In the event the request for information is addressed directly to BCaster, no actions shall be carried out until BCaster has informed the Licensee and the Licensee has instructed it to process the request for information. Unless otherwise agreed, BCaster shall receive reasonable compensation from the Licensee in accordance with its price list from time to time, in the event the assistance referred to in this clause leads to additional expenses for BCaster.
6. BCaster’s employees
6.1. BCaster shall keep the Licensee’s Personal Data that it processes confidential.
6.2. BCaster shall ensure that all of its employees with access to the Licensee’s Personal Data shall only process them in accordance with the terms of the Service License Agreement and these terms.
7. Sub-contractors as processors
7.1. Licensee accepts that BCaster may use sub-contractors in order to provide the Servicein accordance with the Service License Agreement. At present, BCaster’s sub-contractors include Amazon Web Services (storage and processing of data), Digital Ocean (processing of data) and Gmail/Google (user support and internal communications).
7.2. BCaster shall be responsible for the work of its sub-contractors as for its own. BCaster undertakes that its sub-contractors will in their own activities comply with the obligations of a data processor and shall ensure that it has a written agreement with each of its sub-contractors which has, at minimum, terms concerning personal data comparable to those of this Processing Agreement.
7.3. BCaster shall from time to time notify the Licensee of the sub-contractors it uses or maintain a list of sub-contractors accessible through the Service.
8. Location of the service
8.1. Unless otherwise agreed, BCaster shall only process the Licensee’s Personal Data within the EU/European Economic Area.
8.2 The Licensee’s or data subjects’ personal data shall not be transferred outside the EU/EEA regularly, nor in any case unless there is an express request and a legal duty deriving from other legislation to do so, and in any event such a transfer shall be carried out subject to the appropriate safeguards, such as the use of standard contractual clauses.
9. Security of processing and personal data breaches
9.1. Taking into account the nature and quality of the Service, BCaster shall implement data security for the Service at an appropriate level and in accordance with the Service License Agreement in force from time to time.
9.2 BCaster shall, after becoming aware of a personal data breach relating to Licensee’s Personal Data, without undue delay notify the Licensee of any personal data breach to the extent required by the legislation and authority orders in force from time to time. In addition, BCaster shall notify the Licensee of any other substantial defects in the Service that may affect the data subjects or their rights.
9.3. BCaster shall investigate and document the causes of a detected personal data breach, inform the Licensee of the findings of such an investigation, and carry out the necessary technical and organizational measures that could reasonably be deemed to prevent similar breaches in the future.
10.1. BCaster shall, upon a request to do so, provide the Licensee with all the information needed by the Licensee to demonstrate that the data processing by BCaster is in compliance with the terms of this Processing Agreement. Any audits shall be carried out by a reputable, external third party expert organization subject to a duty of confidentiality.BCaster shall allow such third party auditors to carry out audits, of which Licensee will notify BCaster at least thirty (30) working days before any such audit is to be performed.
10.2. Any audits shall be carried out as efficiently as possible both in terms of time and costs, and shall be executed in such a manner as not to cause unreasonable disruption to BCaster’s daily business operations or to BCaster’s obligations of confidentiality towards its other customers or other third parties.
10.3. BCaster shall have the right to charge the Licensee for the time spent with the audit and for any costs incurred due to the audit. BCaster may also send to the Licensee an audit report carried out by an external party (for a separate charge, if applicable).
11.1. BCaster shall compensate the Licensee for damage incurred by the Licensee due to an error or negligence by BCaster or its sub-contractor in processing personal data provided that BCaster or its sub-contractor has acted in breach of the Service License Agreement or the terms of this Processing Agreement. Such compensation shall include any requests for compensation by data subjects or the supervisory authority directed to BCaster and incurred directly due to breach of this Processing Agreement by BCaster or itssub-contractor.
11.2. Neither party shall be liable for indirect, consequential, or punitive damages arising from this agreement or the Service License Agreement except to the extent such restrictions are expressly prohibited on the basis of the applicable legislation or are otherwise legally invalid or incapable of being executed.
12. Entry into force and term
This Processing Agreement shall enter into force as part of the Service License Agreement and as of the date of entry into force of the Service License Agreement and shall expire automatically upon the termination or expiry of the Service License Agreement.