General Terms and Conditions
General terms and conditions of business applying to the supply of media to end-customers
(this version: July 2015)
1.0 General points
1.1 The company ims Internationaler Medien Service GmbH & Co. KG (hereinafter referred to as “ims”) supplies commercial, public-sector and private end-customers, among others (hereinafter referred to as “the customer” or “customers”) with physical and digital media of all types, referred to collectively hereinafter as “media deliveries” in the name and for the account of ims. The General Terms and Conditions (“the GT&C”) set out below shall govern all such media deliveries, unless otherwise contractually established.
1.2 ims shall obtain the media concerned – whether physical (e.g. books and periodicals) or digital (e.g. CDs and DVDs) – from a variety of suppliers (such as publishers and operators of databases) both in Germany and elsewhere. The same shall apply to access to digital media (e.g. access to databases, download platforms for e-papers and e-zines and similar; hereinafter “media accesses”) and for data files (e.g. e-papers and e-zines), which ims shall e-mail to the customer (hereinafter “data shipments”).
1.3 A contract to supply media, data shipments or media accesses shall come into force as soon as ims receives the corresponding order from the customer for the offer concerned. ims may accept the order explicitly or implicitly, in the latter case by beginning, without reservation, the delivery or deliveries concerned.
1.4 The contract shall likewise come into force with the provision of media, data shipments and/or media accesses in the manner published and/or offered by the supplier concerned. ims has no influence over the content, frequency of publication, technical configuration or other characteristics of the media, files and/or media accesses provided.
1.5 The customer shall not reproduce, distribute, disseminate publish or otherwise allow third-party access to the media concerned. This shall not affect the corresponding statutory provisions, with particular reference to the restrictive provisions of the German legislation governing copyright (Urheberrechtsgesetz). The same shall apply to data supplied and to the use of media accesses. If the customer orders on behalf of several users (see clause 3.5), they shall be governed by the same provisions.
2.0 Delivery of physical media and the media holding digital content
2.1 Unless otherwise agreed, the physical media and media used to store digital content ordered by the customer shall be despatched to the delivery address specified by the customer. Deliveries (sales shipment) shall take place at the customer’s risk . ims undertakes to select the logistics supplier responsible for transport. ims shall apply due professional care when carrying out such selection.
2.2 Information regarding delivery dates is not binding, unless the order confirmation concerned expressly mentions a binding delivery date. ims shall not be liable for defective or missing delivery if the shipment is despatched directly from the publisher.
2.3 Unless otherwise agreed, the customer shall meet the shipping costs indicated (on a pro rata basis if applicable) for the medium concerned.
3.0 Data shipments and the provision of media accesses
3.1 In the case of data shipments, ims (or a third party engaged by ims) shall despatch the files concerned (e.g. e-papers or e-zines) to the customer or to a user designated by the customer.
3.2 If the order is for media access, ims (or a third party engaged by ims) shall provide the customer with corresponding access to the data, documents and/or key (e.g. token) concerned.
3.3 If and insofar as the reception/use of files or the use of a media access requires certain technical infrastructure (e.g. hardware/software of a particular version, or an Internet connection), the customer shall be responsible for acquiring and operating the items concerned (including the necessary costs).
3.4. The type and design of the files or media access shall be determined their/its corresponding supplier(s). The same shall apply to the corresponding technical interfaces, terms and conditions of use and any and all other provisions governing the usability of data shipments and/or media access. The customer shall be responsible for obtaining, to the extent required, the information necessary. If and insofar as the use of data shipments and/or media access requires registration with the supplier, the customer shall carry out the corresponding procedures or, where appropriate, authorise ims to do so on the customer’s behalf. The customer undertakes to provide ims with accurate information for the purposes of registering with the supplier, whether directly or by way of authorisation to ims, and likewise undertakes to observe the supplier’s terms and conditions of use.
3.5 The customer shall give a legally binding indication, at the moment of ordering the data shipments and/or media access concerned, of the number of persons (“the users”) authorised to receive and/or use the respective files, with named identification of each user if the corresponding supplier so requires. ims shall then acquire for the customer, on the basis of this information supplied, the number of licenses needed for the data shipments and/or media access concerned.
3.6 The customer ensures that usage of the media access concerned corresponds strictly to the number of users indicated, while furthermore ensuring, wherever applicable, that the parties involved are named, registered users. The customer shall in particular, and regardless of any further requirements on the part of the supplier, maintain the confidentiality of all access data, keys and passwords provided for using the media accesses concerned, and shall not reveal or otherwise divulge these items to any unauthorised third party or parties. The customer shall transfer this obligation to the users accordingly. The same shall apply to downloaded digital content (e.g. e-papers and e-zines) and shipped data files.
3.7 The customer shall notify ims in good time and in writing (e.g. by letter, fax or email) of any planned expansion of the number of users or of intended changes with respect to named users. ims shall take immediate steps in such cases to acquire the necessary licenses from the supplier and make the corresponding data shipments/media accesses available to the customer with the applicable personalised modifications. Extended and/or altered usage of data shipments/media accesses is prohibited if ims has not yet made them available.
3.8 The customer shall likewise notify ims in writing of any planned reductions in the number of users. Such reductions in data shipments and/or media accesses can then be applied in accordance with the corresponding provisions regarding (partial) cancellations.
4.0 Granting of rights
Unless otherwise agreed in individual cases, ims shall grant the customer a non-exclusive, non-transferable, non-sublicensable, individual and personal right, with content restricted by the terms of the corresponding order and these GT&C, time-limited in accordance with the contractually agreed duration, to use the media supplied. Unless otherwise agreed, each order shall cover access by a single user via a single end-user device. All and any further reproduction, distribution, publication and other usage outside the strict limits of copyright law shall require the previous written consent of ims.
5.0 Cancellation, duration and termination of the contractual use of media deliveries
5.1 The customer may only cancel previously ordered media and media accesses if ims has not yet supplied the items concerned to the customer or if ims receives notice of cancellation, in the ordinary course of business, from its own supplier.
5.2 The contractual duration of the agreement to supply media shall depend on its content. Media subscriptions remain in force, unless otherwise agreed, until their cancellation or the expiry of an applicable minimum term; with the same applying to agreements to provide media access.
5.3 This does not affect the right of either contracting party to extraordinary termination of the agreement without notice, if there are reasonable grounds for exercising this right.
5.4 All notice to cancel shall require written form. The date of arrival of the customer’s written notice on the premises of ims shall determine the date of termination.
6.0 Pricing and terms of payment
6.1 The prices payable by the customer to ims shall be determined by the corresponding details of the media, data shipment and/or media access concerned.
6.2 The right is reserved to apply future price increases to subscriptions, ongoing provision of media accesses and similar permanent or recurrent service arrangements.
6.3 In the case of books and other (including digital) publications issued by German publishers, prices are normally set by publishers subject to the price control measures in force. These legal price controls make it impossible to offer further discounts, rebates or similar reductions in such cases.
6.4 The total invoice amount shall be payable immediately and without deduction unless there is express written agreement to the contrary. Payment must be accompanied by the corresponding invoice number and customer code.
6.5 Invoices for subscriptions shall normally be payable in advance.
6.6 ims shall be forced to initiate corresponding legal proceedings in the event of payment default on the part of the customer. The debtor shall meet the costs arising in this respect. Payment shall be considered delayed as of 14 days after the due date of the invoice concerned (see invoice).
6.7 ims shall retain legal title (“retention of title”) to all media and support media until all claims against the customer have been settled in full.
ims shall only be liable for loss or damage, on whatever legal grounds, to the extent that the customer makes corresponding claims based on wilful misrepresentation or gross negligence on the part of ims or its appointed agents or representatives. This shall not apply to liability for guaranteed characteristics or the infringement of essential contractual obligations (“cardinal obligations”). If and insofar as infringement of a cardinal obligation on the part of ims does not constitute wilful misrepresentation or gross negligence, compensation shall be limited to the loss and damage typically foreseeable in such cases. This provision shall also apply if the customer demands compensation for unnecessary expenditure instead of compensation in lieu of fulfilment. None of the above limitations of liability shall apply in the event of personal injury in the context of strict liability as defined under the terms of German product liability legislation (Produkthaftungsgesetz).
8.0 Termination of the commercial relationship
Both parties shall be entitled to terminate the commercial relationship, unless otherwise contractually agreed in individual cases, subject to six months’ notice counted from the end of the current calendar quarter, but by no earlier than the expiry of all the time limits defined in clause 5.2. Notice of termination must be given in writing.
9.0 Confidentiality and data protection
ims and the customer shall, as the contracting parties, maintain the confidentiality of each other’s trade and business secrets, including the contents of the agreements between them regarding the supply of media and the provision of media accesses, insofar as disclosure is not required for fulfilment of the agreement, for the application or defence against claims arising from the contractual relationship or as might be specified by law.
ims shall handle the personally identifiable data of the customer and users in accordance with the applicable provisions of data-protection legislation. If and insofar as data must be transferred to and used by third parties for the processing of orders on the part of the customer (e.g. in the case of subscriptions), the customer hereby consents to such transfers of data and and assures that it is authorised to make available the data concerned.
10.0 Final provisions
10.1 The customer shall not assign to any third party or parties, whether individually or in their entirety, the rights and obligations arising from agreements regarding the delivery of media and the provision of media accesses, without first obtaining the corresponding written consent of ims. ims shall be entitled to assign to a third party or parties the rights and obligations arising from such agreements.
10.2 The customer shall only offset claims that are legally enforceable or accepted in writing by ims. All and any right of retention on the part of the customer is hereby excluded.
10.3 The customer’s general terms and conditions of business shall not be recognised.
10.4 If any part of these GT&C should be invalid or unworkable, or subsequently become so, this shall have no effect on the legality of the GT&C as a whole. If this occurs, the contracting parties shall endeavour to reword the affected provision in such a way as to preserve as far as possible the original economic purpose of its unworkable or invalid predecessor. This shall also apply to items found not to be covered by the agreement.
The place of performance is the registered place of business of ims.
The place of jurisdiction is Hamburg (Germany) if the customer is a commercial entity. If the customer is not a commercial entity, it is agreed that the place of jurisdiction shall be Hamburg if the customer has no general legal jurisdiction within Germany or if the customer relocates his or her usual place of business or residence to a country other than Germany after entering into the agreement, or if the usual place of residence of the customer is unknown at the time of making a legal claim.
The laws of Germany shall apply to the exclusion of any case referral mechanisms that might apply. The United Nations Agreement with Respect to International Contracts to Purchase is hereby excluded, even as part of German law.