General Terms & Conditions
1. Scope of application
For the business relationship between Media Carrier GmbH, Muthmannstraße 1, 80939 Munich (“Media Carrier” or “Special Places”) and the customer ("customer"), only the following general terms and conditions (GTCs) apply, in the version valid at the time of commissioning. Deviating general terms and conditions of the customer will not be recognised unless Media Carrier expressly agrees to their validity in writing.
2. Subject of this contract
The customer commissions Media Carrier to carry out the services specified in the offer and contract documents ("offer") and to which the provisions of these GTCs apply, insofar as they are applicable to the respective service. Arrangements from the offer take precedence over the provisions of these GTCs, insofar as they are deviated from.
3. Media Box
Media Box enables the customer and his/her customers ("users") to retrieve digital periodicals, magazines, podcasts etc. ("digital content") by means of Media Carrier’s software of servers and databases ("Media Box"). With regard to the retrieval of specific digital content by a user, separate GTCs apply, to which the user must consent before retrieving the digital content. In the following it should be contractually regulated that Media Carrier enables the customer to use Media Box (e.g. through technical integration of Media Box on the customer’s website) so that it is available to the customer’s users.
The customer must ensure, at his/her own risk and expense, that s/he establishes and maintains the technical prerequisites necessary in his/her area to securely offer and provide access to Media Box, in particular with regard to the hardware and software used and the Internet connection. Media Carrier shall support the customer with the technical set-up of Media Box.
In the event of further developments to Media Box and after having been informed of these developments by Media Carrier, it is the customer's responsibility, at his/her own risk and expense, to make the necessary adjustments to the IT infrastructure s/he uses. Media Carrier shall support the customer in these measures.
The customer acknowledges that Media Box is also a database work or database created by Media Carrier within the meaning of §§ 4 para. 2, 87a para. 1 of the Copyright Act (Urhebergesetz, UrhG). Associated computer programmes are subject to the protection of §§ 69a ff. UrhG, works provided are subject to the protection of § 2 UrhG. Third-party rights to the protected works remain unaffected.
In accordance with the provisions mentioned under Section 3 and on condition that the remuneration owed and due is paid, the customer shall receive the simple, non-exclusive, non-transferable, geographically unlimited right to offer Media Box to his/her customers or users for use in accordance with the contract. This right is limited to the Internet/intranet subscription and to the duration of the contract.
The customer may only use Media Box according to Media Carrier’s stipulations. In particular, the customer is not entitled to subject Media Box to a technical redesign, nor to decompile it illegally, etc. Media Carrier reserves the right to refuse access to Media Box if there are indications that the technologies used by the customer and/or users impair its functionality or security. Media Carrier shall contact the customer before blocking access, informing the customer of the facts and of Media Carrier’s intention to block the customer’s access and giving the customer the opportunity to remedy the situation within a reasonable period of time; this does not apply to situations of imminent danger.
Media Carrier is also entitled to take technical measures to prevent use beyond the agreed scope, in particular to install appropriate access barriers. The customer may not use any devices or other means that serve to circumvent or overcome Media Carrier’s technical measures. In particular, the customer may not use web crawlers, spider programmes, meta search engines or comparable technologies that automatically retrieve content from Media Box. In the event of improper use, Media Carrier is entitled to immediately block the customer’s access to Media Box. Further rights and claims of Media Carrier, in particular the right to extraordinary termination for good cause as well as claims for damages, remain unaffected.
Media Carrier makes digital content available via Media Box; however, it does not create this content. Media Carrier therefore accepts no liability for the completeness, correctness or topicality of the digital content.
Media Carrier endeavours to continuously adapt Media Box to current requirements. Media Carrier therefore reserves the right to make changes in order to update the system to the state of the art and to optimise the system, in particular to improve user-friendliness. Media Carrier also reserves the right to make changes to content, provided that this is required for the purposes of error correction, updating and completion, to optimise the programme or for licensing reasons.
If, after the conclusion of the contract, Media Box is expanded to a high degree to include additional content or digital content, Media Carrier is entitled to increase the remuneration by an amount corresponding to the expansion. Insignificant expansions are not taken into account. The increased remuneration can be requested for the period following the date of the expansion. Media Carrier shall justify the expansion and consequent increased remuneration to the customer. The customer must be informed in advance of the expansion and consequent increased remuneration by email. The customer is entitled to terminate the contract for the use of Media Box on the date on which the increased remuneration comes into effect, should this date occur before the regular notice period. If the customer does not cancel or does not cancel in time, the contract shall be continued with the new remuneration amount.
Without prejudice to Section 3.10, Media Carrier is entitled to increase the remuneration by giving one month’s notice, provided that after the conclusion of the contract there has been an overall increase in the costs incurred for the provision of the services, in particular the costs of maintaining and further developing the technical infrastructure, the costs of licensing works by third parties or the costs for customer service and general administration, or insofar as the market prices of the works placed in Media Box, in particular with regard to digital content, have risen. Media Carrier shall also take into account any cost savings that may have occurred. Media Carrier shall justify the increase in remuneration to the customer and shall inform the customer in advance by email. The increase in remuneration is limited to the increase in the aforementioned costs. The customer is entitled to terminate the contract for the use of Media Box on the date on which the increased remuneration comes into effect, should this date occur before the regular notice period. If the customer does not cancel or does not cancel in time, the contract shall be continued with the new remuneration amount.
Upon termination of the contract, Media Carrier is entitled to immediately block the customer’s access to Media Box. In addition, upon termination of the contract, the customer is obliged to stop using Media Box and to stop offering it and to remove all Media Carrier software components, in particular Media Box, from his/her IT infrastructure.
4. Distribution of print media / sampling / items
Pursuant to the offer, Special Places shall offer the customer selective distribution and delivery of the customer’s print media, items and/or samplings ("items") to selected cooperation partners and locations ("display partners").
Special Places cannot guarantee that, without exception, all display partners will participate to the extent intended according to the offer or will display items. This only does not apply if more than 20% of the display partners do not participate to the extent intended according to the offer or do not display items. With regard to the part that exceeds 20%, statutory warranty rights apply, subject to the limitations of liability mentioned in Sections 4.4 - 4.5 and Section 8.
After the agreed display duration, delivered items shall be picked up by Special Places and made available to the customer for collection in the Special Places warehouse named in the offer. Special Places shall inform the customer of this. The customer must collect these items at his/her own expense no later than 14 days after notification. If s/he does not do so, Special Places is authorised to dispose of the items at its own expense. The customer shall inform Special Places at least 3 days before collection of when s/he would like to collect the items.
Special Places is not liable for damage to items caused by third parties, including display partners. Any claims for damages to which Special Places may be entitled from such a damage event shall be assigned to the customer by Special Places. Provisions from Section 4.5 and Section 8 remain unaffected.
The liability of Special Places with regard to stored items and their transport to the delivery partner is based on the general liability provisions pursuant to Section 8, whereby liability in accordance with the mandatory provisions of the Convention on Contracts for the International Carriage of Goods by Road (CMR) and the Commercial Code (Handelsgesetzbuch, HGB) remain unaffected. Upon delivery of the items to the delivery partner in accordance with the offer, Special Places’ liability with regard to the items terminates.
The customer shall deliver the items to the Special Places warehouse named in the offer at his/her own risk and expense.
The customer must provide Special Places in good time, if possible before delivery of the items, with the information that Special Places requires for the proper storage and transport of the items, in particular information on handling the items.
5. Remuneration, invoicing and due dates
Unless otherwise specified in the offer, the provisions of this paragraph apply to remuneration, invoicing and due dates.
With regard to services related to Media Box, remuneration shall be made monthly in advance at the beginning of the calendar month - no later than the third working day.
With regard to performance in terms of the distribution of print media / sampling / items, remuneration shall be made upon completion of the job.
All amounts stated in the offer are exclusive of statutory VAT.
Invoices are due for payment immediately upon receipt.
6. Start, duration and termination of the contract
Unless otherwise stipulated in the offer, the provisions of this paragraph apply to the start, duration and termination of contracts.
A contract is concluded when the customer accepts the binding offer from Media Carrier contained in the offer documents, including the provisions of these GTCs, by signing it in writing. The requirement for the written form is also deemed to have been fulfilled if the customer sends a scan of the signed Media Carrier offer by email, fax, etc.
The contract period is 12 months. It shall be extended by a further 12 months if notice of termination is not given at least 3 months before the end of the contract period.
Notice of termination must be given in text form (e.g. email).
The recipient’s receipt of the termination is decisive for establishing compliance with the notice period.
The right to extraordinary termination of the contract for cause remains unaffected.
The parties agree to maintain secrecy with respect to confidential information. This obligation also remains in place after the contract has come to an end.
The following confidential information is excluded from this obligation:
Information which can be shown to have already been known by the recipient upon conclusion of the agreement, or became known by a third party thereafter, without a confidentiality agreement, statutory regulations or official orders being violated in the process;
Information which was publicly known upon the conclusion of the agreement, or was made publicly known thereafter, in so far as this does not concern an infringement of this agreement;
Information which must be disclosed on the basis of statutory obligations or by order of a court or public authority. Insofar as it is permissible and feasible, the recipient obliged to disclose shall inform the other party in advance and give the other party the opportunity to take action against the disclosure.
Furthermore, the parties shall only disclose confidential information to employees who need to know said information for the purposes of executing the contract, and provided that said employees are under an obligation to maintain secrecy after leaving the company to the extent permissible by employment law.
Media Carrier is liable, for whatever legal reason, within the framework of the statutory provisions only in accordance with this paragraph.
Media Carrier has unlimited liability for damage resulting from injury to life, limb or health, as well as for damage based on intent or gross negligence on the part of Media Carrier or one of its legal representatives or vicarious agents, as well as for damage due to non-compliance with a guarantee given by Media Carrier or guaranteed property or because of fraudulently concealed defects.
Media Carrier is liable, limited to compensation for the foreseeable damage typical for the contract, for damage that is based on a slightly negligent breach of essential contractual obligations by Media Carrier or one of its legal representatives or vicarious agents. Essential contractual obligations are such obligations, the fulfilment of which is essential for the proper performance of the contract and upon compliance with which the contracting parties can usually rely.
The strict liability of Media Carrier for defects already existing at the time of the conclusion of the contract pursuant to § 536a para. 1 clause 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) is excluded, subject to the above provisions in this paragraph.
Liability under the Product Liability Act (Produkthaftungsgesetz) remains unaffected.
Claims for damages in accordance with Section 8.3 lapse one year from the start of the statutory limitation period.
The abovementioned restrictions also apply to Media Carrier’s legal representatives and vicarious agents if claims are made directly against them.
9. Final provisions
The place of performance is Munich. The exclusive place of jurisdiction for disputes with merchants, legal entities under public law or public law special funds from contracts is also Munich.
The law of the Federal Republic of Germany applies, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The customer may only transfer to third parties the rights and obligations arising from or in conjunction with this agreement following written consent from Media Carrier.
The customer is only authorised to offset and exercise lien or retention rights if the claims s/he has asserted are recognised by Media Carrier or are undisputed or have been legally established.
Changes and additions to this agreement must be in writing. This shall also apply to any change to or waiver of this clause. The written form is also deemed to have been maintained if a scan of the agreed and signed measure is received by the other party (e.g. by email or fax).
Should individual provisions of this contract be ineffective, this does not fundamentally affect the validity of the remaining provisions. The contracting parties shall endeavour to find a provision in place of the ineffective provision that most closely matches the contractual objective, both legally and commercially.
The offer and contract documents are an integral part of these GTCs, unless they have been expressly declared non-binding.
Media Carrier, 31.01.2021