General Terms and Conditions of Use
General Terms and Conditions of Use
of Media Carrier GmbH
I. SCOPE OF APPLICATION
The following General Terms and Conditions of Use apply to users of the “digital kiosk” (hereinafter: customers).
The “digital kiosk” is operated by:
Media Carrier GmbH
VAT ID No. DE 177565626
(hereinafter: Media Carrier).
II. SUBJECT MATTER OF THE CONTRACT
1. Media Carrier offers digital publications (such as magazines, journals) of various publishers in PDF format for download to customers as end users on a homepage as part of the respective offering depending on availability (hereinafter: “digital kiosk” for short), but not subscriptions.
2. The customer has the option of accessing on the Internet the homepage made available by Media Carrier here, if applicable to download digital publications depending on the offering and to use the downloaded digital publications privately for its own, non-commercial purposes.
3. The customer can download and if applicable save the digital publications as a PDF document to its own storage medium after clicking accordingly in the digital kiosk and concluding the ordering procedure including payment. The downloads are generally fee based. In individual cases, free downloads separately labelled as such may be available. Media Carrier is responsible for regimenting the downloads and determining the number of free downloads. If free downloads are available to the customer, in addition to and independent of this additional or other digital publications can also be ordered on a fee basis.
4. Contractual obligations arise between the customer and Media Carrier, provided that nothing different is regulated against this in the individual case.
III. BINDING ORDER/CONCLUSION OF THE CONTRACT
1. The utilisation of the digital kiosk offers the customer the possibility of concluding contracts by electronic means and/or making purchases. The customer is aware that its electronic entries establish its consent and its intention to legally bind itself to the contracts and to pay for the purchases/orders according to the contracts. Hardware and software may be necessary to gain access to the customer’s electronic records and to call them up. However, their provision is solely the responsibility of the customer.
2. With the sending of the order to Media Carrier by clicking the “Buy now” button in the digital kiosk, the customer submits a legally binding declaration to Media Carrier for the conclusion of the contract in the scope stated in the order and with the content specified there.
3. In the subsequent period Media Carrier confirms acceptance of the order and therefore the realisation of the contract with the customer by sending an e-mail to the e-mail address indicated by the customer when ordering.
IV. REQUIREMENTS FOR USE OF THE DIGITAL KIOSK
1. To use the digital publications and to save publications offered for download, the customer must meet certain technical minimum requirements, for which additional fees may be incurred, if applicable. The use of the system requires compatible devices (Internet or WLAN-capable end device such as iPad, iPhone, notebook computer, smartphone, etc.), Internet access and certain software (the program Adobe Reader from Adobe Systems Inc. in the respective current version or another program that makes it possible to view and save PDF documents). The use of the service may depend on the performance of these factors. Other usage and licence terms for the programs may apply and regular updates may be required. High-speed Internet access is highly recommended for regular use.
2. At least for the time of the download, there must be an uninterrupted connection to the Internet. The Internet connection is not provided by Media Carrier. Depending on the Internet-access provider, additional costs may arise for the customer for the use of the Internet and the downloading of the data volume connected with the digital publication. These are not connected with the Media Carrier service and are not included in the price of the digital publication.
3. If the customer downloads and, if applicable, also saves the digital publication, the customer must ensure that there is enough disk space for the digital publication on the storage medium it has designated.
4. It is indicated to the customer that the fulfilment of these requirements, which may change from time to time, is the customer’s responsibility. The Internet access and storage option for the data volume of the digital publications is not part of a Media Carrier product or offering.
5. Furthermore, the customer must have an e-mail address and indicate this as part of its order, to which Media Carrier can send the customer a confirmation of its order via e-mail.
1. The provision of the digital publications is generally fee based. With the conclusion of the fee-based order of the digital publication, the customer is required to pay the agreed price for this and Media Carrier is entitled to charge the agreed price – for example by charging the specified credit card. This obligation exists independently of the fact that the download of the digital publication is not yet possible at this time, but will only be allowed by Media Carrier after the payment process has been introduced. The customer is required to make payment in advance.
2. A payment is only possible using one of the means of payment listed below: PayPal, credit card, mobile telephone. The payment is handled by an external payment service provider.
3. The data required for payment of fee-based orders will be collected by Media Carrier or the payment service provider and, if applicable, exchanged between the two companies.
1. The total price includes the prices of the product chosen by the customer and of the products and services chosen by the customer and the value added tax valid for this on the day of the ordering procedure and, to the extent shown, if applicable also fees for the concrete payment type.
2. All prices are stated in EURO.
3. As long as no binding contract has been concluded, Media Carrier may change the prices of products offered via the digital kiosk at any time. The digital kiosk will offer no price guarantee and grant no refund of the purchase price in case of a price reduction or a special offer made after the purchase.
If a product is no longer available after the purchase but before the download, the customer will be credited the purchase price for this product. Other legal claims remain unaffected.
4. If invoices are to be issued, Media Carrier is entitled to issue them in electronic form and to send them as an e-mail to the e-mail address communicated by the customer as part of its order.
1. Following declaration of acceptance by Media Carrier and introduction of the payment process, the digital publication ordered by the customer on a fee basis is available for one-time, immediate download on the digital kiosk website. A sufficient Internet connection existing until the conclusion of the download is a requirement for this download and is not provided by Media Carrier. Against this background, Media Carrier owes the provision of the download option from the digital kiosk and the digital publication.
2. The customer must arrange for the download itself under its own ownership and competence, as well as any saving of the purchased publication. The obligation to pay the agreed price remains unaffected, even if the customer subsequently refrains from the download and/or saving the digital publication.
3. After the conclusion of the download the digital publication is not automatically saved on the customer’s device that was used for the download. If saving is desired, the customer must arrange for this separately on its end device.
VIII. DATA PROTECTION
1. Media Carrier records the customer’s personal data (“personal data”) to fulfil every order as well as possible or to provide products, services and associated information for the customer.
2. The personal data provided by the customer is stored in a database that is located in the Media Carrier company server. Media Carrier will protect the customer’s personal data. This includes taking appropriate technical, organisational and legal steps to protect the data.
3. These personal data and data for ordering and download are collected and saved for the purpose of fulfilment of the contract by the company processing the payment transaction or exchanged between media carrier and the payment service provider and respectively saved.
This applies in particular to the payment process. With the order of a download of fee-based media, the customer grants its consent for necessary data transfer. Media Carrier takes the protection of the customer’s personal data very seriously. If the customer has questions, concerns or objections, there is the possibility of contacting Media Carrier. The contact data provided above are available for this purpose. This also applies if the customer would like to review, correct or delete personal data.
4. More information is contained in the data protection declaration, which can also be reviewed on the Media Carrier website.
IX. RIGHT OF WITHDRAWAL
In the context of the digital kiosk, Media Carrier does not offer the customer the conclusion of subscription contracts, but only the download of individual digital publications. Therefore the customer does not have a right of withdrawal according to § 312 g paragraph 2 sentence 1 no. 7 BGB (German Civil Code), even if the customer makes the purchase as a consumer.
X. RIGHTS OF UTILISATION
1. The utilisation of digital publications is allowed exclusively for the customer’s own, non-commercial purposes. Other or further utilisation by the customer is prohibited unless expressly permitted by law. Neither Media Carrier nor the publisher issuing the digital publication grant the customer such further rights of utilisation. Therefore, for example, in particular editing or redesigning the digital publication and publishing or utilising the result, distributing the digital publication or making the digital publication accessible to the public are not permitted without the copyright holder’s permission. No further rights are transferred with the contract via the purchase and the download. This also applies to images that have been created by Media Carrier or arise from screenshots. The rights protected by copyright to the contents and images transferred by download are retained by the original copyright holders.
2. To protect against abuse, the respective publisher issuing the digital publication and Media Carrier retain the right to label digital publications and individual content by additional measures that are not readily recognisable by the customer.
3. The individual digital publications may be provided with different copy protection mechanisms (e.g. passwords/download keys). The customer is required to refrain from any circumvention or deactivation of the copy protection mechanisms used.
XI. DUTIES AND OBLIGATIONS OF THE CUSTOMER
1. Any download keys for opening the digital publication must not be passed on to unauthorised third parties and must be kept protected from unauthorised access by third parties.
2. The digital publications ceded to the customer must not be used improperly; in particular national and international copyrights, trademark rights, patent rights, naming rights and labelling rights as well as other industrial property rights and personal rights of third parties must be observed.
3. Media Carrier and its vicarious agents are exempt from all third party claims based on an unlawful use of the digital publications by the customer or that occur with its approval, or that result in particular from disputes involving data protection law, copyright law or other law that are connected with the utilisation of the digital publications. If the customer recognises or if the customer must recognise that such a violation is threatened, it must inform Media Carrier immediately.
4. Media Carrier points out to the customer that when importing or exporting downloaded digital publications the customer must follow applicable legal regulations such as entry requirements of the target country under its own responsibility and independently. In many countries the import of certain products, particularly with regard to the presentation and content of the product purchased by the customer, is subject to country-specific restrictions, or even bans.
1. The respective issuing publisher is solely responsible for the content and completeness of the digital publications; in this respect Media Carrier only administers a “kiosk function.”
2. Media Carrier shall be liable according to the legal requirements for damage to property or personal injuries only in case of premeditation or gross negligence, provided that the damage demonstrably arose due to the company Media Carrier. Media Carrier assumes no liability beyond this.
3. Media Carrier shall in particular assume no liability for damages that arise due to third parties, for example due to unauthorised stealing of data by third parties.
4. Media Carrier shall assume no liability for damages to the customer that arise due to the violation of entry requirements or customs regulations by the customer.
5. The above-mentioned exclusions of liability or limitations apply accordingly for claims against companies affiliated with Media Carrier, Media Carrier’s legal representatives and other employees and its vicarious agents.
6. Insofar as the warranty and/or liability is not excluded or limited according to the requirements of these General Terms and Conditions of Use, liability and warranty are based on the legal requirements.
1. Media Carrier reserves the right to expand, reduce or replace the products offered in the digital kiosk, or to completely end the offer. A limitation of the availability of the offering as a whole or in part is possible either in respect of space or time.
2. Media Carrier does not guarantee that all the products offered in the digital kiosk will be available to the customer immediately. If a chosen product is not available, no contract is concluded and there is therefore no obligation to pay.
XIV. INFORMATION ON THE CONSUMER ARBITRATION BOARD FOR DISPUTE RESOLUTION PROCEDURES
1. Media Carrier is not willing and not required to participate in a dispute resolution procedure before a consumer arbitration board in the sense of the Consumer Dispute Resolution Law.
2. The European Union has created an online dispute resolution platform at the Internet address www.ec.europa.eu/consumer/odr. At the Internet address provided, consumers will find information relevant to this, particularly on the possibility of utilising the platform to settle disputes with companies via online purchase contracts and online service contracts.
1. To the extent permitted by law, German law alone is applicable to the legal relationships between Media Carrier and the customer.
2. If a requirement of the above General Terms and Conditions of Use is or becomes ineffective in whole or in part, the validity of the remaining requirements shall remain unaffected by this.
3. Media Carrier reserves the right to amend the General Terms and Conditions of Use at any time with future effect.
XVI. MEDIA CARRIER CONTACT DATA
Media Carrier can be reached at:
Media Carrier GmbH
Managing Director Philipp J. Jacke
Telephone: 0049 89 32471 4264
Fax: 0049 89 32471 66 4264
Commercial Register 194121 Munich District Court