2.4.In het sponsorcontract is het volgende overeengekomen, voor zover hier van belang:
Ҥ1 Object of contract
1. Under this contract the Cyclist assigns to an unlimited extent and exclusively the worldwide exploitation of his personal rights and his rights to his own image to [GmbH] for the marketing to promote his image for [GmbH] , its sponsors and of the Cyclist himself.
Included hereby are all rights to the reproduction, publication and marketing of all actually known and future media. [GmbH] is permitted to grant sub-licences as well as to assign its granted rights to third parties. The consent of the Cyclist is not necessary in this respect. Specifically the Cyclist assigns to this end the rights to [GmbH] , which are necessary for achieving the aim of the contract, in particular, however not conclusively
- the right to the name, form, photographic image, moving image, signature and voice, sporting successes and biographical information of the Cyclist, including all reproductions or imitations of the aforementioned features
- the right to use the personality for existing and future appearances, also within the framework of all advertising, in all media, in particular TV, radio, editorial advertising, advertisements, Internet, social media, mobile radio advertising, outdoor advertising, editorials, interviews, promotions, posters, corporate and product PR, merchandising articles as well as in combination with sales-promotion measures (POS)
- the right to equip the Cyclist (incl. racing machine/MTBike) as well as the right to equip the Cyclist with leisure clothing insofar as the Cyclist appears in public as a member of the Multivan [GmbH] Biking Team.
[GmbH] is also granted in particular the right, without a separate consent of the Cyclist, to oblige other co-, main and secondary sponsors besides the head sponsor.
2. The Cyclist is responsible for ensuring that he may dispose freely over the rights mentioned above in Par. 1 and in particular has not entered into any opposing obligations with third parties.
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§2 Duties and return service of the Cyclist
I.
Duties of the Cyclist
1. Through this contract the Cyclist is obliged to be available for [GmbH] for all sporting mountain bike elite races named by the team and events to promote communication of all kinds during the contractual term insofar as this is permitted by his sporting or health efficiency. The Cyclist shall in this respect make his full sporting performance available to the team. He owes hereby his participation with the best possible effort. He shall in particular make every effort to win competitions.
2. The Cyclist moreover hereby acknowledges the statutes and the regulations of the [GmbH] team in their respective valid version as binding for him. He hereby subjects himself to the authorisation of the team as employer. The currently applicable assignment plans, dates were presence is required, sporting programmes and regulations, team statutes, etc. are enclosed with this contract as Set of Annexes 1. The Cyclist accordingly has no entitlement to participate in certain events.
3. The Cyclist undertakes to show fair sporting conduct, in particular to comply with all regulations of the mountain bike racing sport. (…) The Cyclist further undertakes to comply with the regulations of the federations UCI and BDR or other national federations and here in particular to comply with the respective actual regulations concerning doping, in particular also the WADA/NADA. The Cyclist hereby accepts an absolute ban on doping. (…) The Cyclist hereby voluntary subjects himself to the doping controls ordered by the federation and/or the team. If a decision is made by [GmbH] notwithstanding this not to register the Cyclist for a race, (…) the Cyclist must accept this without compensation. The same applies to corresponding measures if the Cyclist e.g. is responsible for improper use with regard to his health certificate and/or other practices are known to him which should serve to circumvent the anti-doping regulations or are suitable for concealing the intake of banned substances. Further the cyclist is obliged to take part in the national ADAMS-System ("Whereabouts") according to WADA-Regulations.
4. The Cyclist undertakes to use the bicycles and provided items of clothing and other materials of [GmbH] or the sponsors in all cycling sport events, in which he takes part (competitions, training events, etc.) as well as in the training and in private sports activities. The Cyclist shall ensure that the relevant logos, emblems and other advertising statements are always as far as possible clearly visible and worn and presented to provide the optimum advertising effect; this applies in particular also to the presentations of [GmbH] and the team sponsors, which are also insofar to be included on the personal/private homepage of the Cyclist.
II.
Return service of the Cyclist
1. The Cyclist shall receive the fee regulated under § 3 from [GmbH] if he in return permits the use of his name and the right to the own image for the comprehensive and exclusive use in the communication work, in particular for the use on the own homepage, in reference lists, etc., and satisfies his obligations under this contract (…)
The Cyclist undertakes to always communicate [GmbH] and the sponsors positively in all public appearances, albeit for private or professional reasons, above all in all appearances in the media within the framework of that which is possible and reasonable for him. The Cyclist particularly undertakes to promote the image of [GmbH] and the sponsors.
2. The Cyclist undertakes to coordinate other advertising activities for the benefit of third parties previously with [GmbH] and to obtain its written consent. [GmbH] shall approve these advertising activities if the sponsors of [GmbH] approve these activities on their part unless the interests of [GmbH] or its sponsors which are worthy of protection are impaired hereby. This shall also apply to the gloves, shoes and socks of the Cyclist, with regard to which the Cyclist incidentally acts autonomously in his obligation towards sponsors.
In addition, the Cyclist undertakes not to promote interests of competitors of [GmbH] or its sponsors in any other manner— not even indirectly— during the term of the contract unless this is unavoidable for him. (…) The Cyclist is additionally granted the right, which can be revoked at all times, to include 2 (two) personal sponsors on the team jersey (…) insofar as this does not conflict with the UCI regulations for national champion jerseys and world champion jerseys (…) and the existing team sponsors and/or those conducting negotiations with [GmbH] and [GmbH] has previously approved the relevant sponsor and the concrete imprint in writing. Referring to this, it has to be set clear, that personal Sponsors of the Cyclist are not allowed on World Champion Jerseys in general. In addition the Cyclist undertakes, before entering into a contract with a personal sponsor, to give [GmbH] the opportunity to name an alternative sponsor at the corresponding conditions —within 4 weeks from the written notification -, who then should enjoy a pre-emptive right for the conclusion. Team sponsors principally have exclusive priority on national champion jerseys and world champion jerseys.
3. The contractual parties undertake to show each other mutual respect, well-being and loyalty, this shall also apply with regard to the sponsors of [GmbH] . The Cyclist shall in particular not make a negative statement in public about [GmbH] or the sponsors, their products and/or services. (….)
4. Each contractual party shall inform the other party immediately about all circumstances, which could be of significance for the execution of this contract. Measures with a publicity effect are if possible to be coordinated with the other contractual party in advance.
5. The contractual parties undertake to treat the contents of this contract, in particular the services owed hereby, confidentially towards third parties. (…).
6. The Cyclist shall use the items of equipment/materials made available to him by [GmbH] or the sponsors exclusively for the aims stated in the preamble and this contract and account to [GmbH] in this respect after termination of the contract. (…)
§ 3 Duties of [GmbH] , remuneration of the Cyclist
1. [GmbH] undertakes to provide or make available to the Cyclist the team-own equipment for use free of charge for the duration of the contractual term. The use by the Cyclist is only permitted by complying with the regulations for use. (…)
2. [GmbH] undertakes to make the customary team sports clothing as well as per season 2x MT6, 2 x Cyclo Cross, 1x road racing bicycle (by agreement) available to the Cyclist for the competition and training use, free of charge; this equipment which is to be provided by the team bears the name and logo of the team. (…) These materials shall remain the property of [GmbH] and are respectively to be returned without request to [GmbH] at the end of the season — with the exception of the sports clothing.
3. As consideration for the assignment of the personal rights and rights to image as well as to his advertising activity for the sponsors of the [GmbH] team, consequently for the handing over of his rights as stated in this contract collectively referred to as rights to image the Cyclist shall receive
in year 2013
a fixed fee (…) , less any withholding tax on income that is to be paid by [GmbH] in Germany ( 15,825%), to be paid out in monthly instalments (…).
in year 2014
a fixed fee (…) less any withholding tax on income that is to be paid by [GmbH] in Germany ( 15,825%), to be paid out in monthly instalments (…).
The monthly instalments shall be paid out at the respective end of the month. (…)
(…)
6. [GmbH] is entitled to reasonable reduce the aforementioned fee if the sporting and/or
advertising or communicative performances of the Cyclist are not appropriate for circumstances for which he is responsible, in particular owing to insufficient availability and/or insufficient training, by taking into account the joint plans and/or the Cyclist is not available as a result of illness/inability to take part in competitions for longer than 6 months. This shall also apply if the performance of the Cyclist, which can reasonably be expected according to the previous performance is not achieved during the contractual term.
The prerequisite for a full entitlement to the fees from this contract is that the Cyclist ranked among the Top 30 of the UCI-world ranking list on all days of a month for which an instalment of the fee is paid. If the Cyclist is officially listed there with a lower rank on even just one day of the relevant month the fee entitlement shall be reduced on the whole to the extent that the amount paid is reduced by 25% for each relevant month if the deterioration in rank is not concretely and as proven due to an injury, incurred when racing or training.
§ 4 Personal service
The Cyclist is only entitled and obliged to personally perform a service. The full or partial performance of a service — in particular with regard to the public relations work — by other persons than those stated or by third party vicarious agents is only permitted with the prior written consent of [GmbH] .
The receivables and other claims under this contract are not transferrable.
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