General Terms and Conditions of Service and Payment of MVB GmbH, Frankfurt am Main
Note: This English translation of our General Terms and Conditions is merely intended as an aid to understanding for customers whose knowledge of English is better than their knowledge of German. The German version of the General Terms and Conditions shall form part of the contract.
(As per: 20.06.2017)
Unless otherwise agreed in writing, the business relations between you (hereinafter: Customer) and us (hereinafter: MVB) including any and all claims arising in this connection shall be governed exclusively by the following Terms and Conditions in the version valid upon conclusion of the contract. We shall not recognise any deviating terms and conditions, unless we expressly agree to these in writing on a case-by-case basis. MVB provides its services exclusively to entrepreneurs.
I. Provisions Relating to the Delivery of Goods
The price that applies upon conclusion of the contract is always decisive for your payment obligation. The Customer shall be immediately informed of any price changes between the receipt of an order or a contract and the provision of the service.
2. Delivery Dates
Specific delivery dates for new publications and new editions are not guaranteed.
3. Retention of Title
All our deliveries are subject to retention of title in accordance with Section 449 of the German Civil Code (BGB) with the following expansion and extension:
a) MVB retains title to the delivered goods until payment in full of all our claims against the Customer (reserved goods).
b) The Customer is entitled to resell the reserved goods in the ordinary course of business. By accepting these Terms and Conditions of Service and Payment he assigns all claims against third parties from the resale of the reserved goods to MVB in full with all rights to security.
c) If the Customer includes claims from the resale of the reserved goods, then after balancing the individual current account claims, the respective recognised periodic balance or – if this balance is entered in the current account – the final balance arising at the end of the current account relationship shall be deemed to be proportionately assigned up to the amount of the claims entered in the current account from the resale of the reserved goods, but limited to the invoice value of the reserved goods. If claims of MVB are included in a current account with the Customer, the agreed reservation of title and the assigned security shall be considered security for the proportionate account balance due to us.
d) The Customer is authorised to collect the claims assigned to MVB from the resale of the reserved goods on behalf of MVB. This authorisation may be revoked at any time.
e) The Customer is not entitled to pledge the reserved goods or to transfer them to third parties as security. He is obliged to immediately object to any seizure of the reserved goods or any other impairment of MVB's rights by third parties and inform MVB without delay.
f) The Customer is obliged to insure the reserved goods against fire, water and theft and shall furnish proof thereof to MVB upon request. All claims resulting therefrom against the insurer relating to the reserved goods are considered assigned to MVB upon acceptance of the present Terms and Conditions of Service and Payment.
g) If the Customer is in arrears with payment, MVB is entitled to assert all the rights in clause I.3.
4. Fixed Book Prices
The Customer is obliged on the basis of and within the framework of the German Act on the Resale Prices of Books (Buchpreisbindungsgesetz) to observe the fixed shop price when selling to end customers.
5. Bearing of Risk
a) The delivery shall be carried out at the expense and risk of the Customer if the Customer is an entrepreneur. MVB shall not charge for packaging (except for special packaging, rolls etc.). If no specific mode of dispatch is prescribed or if MVB is not connected to the prescribed route of dispatch, MVB is entitled to choose the mode and route of dispatch itself.
b) MVB shall not provide compensation for shipments lost or damaged during transport. The Customer must lodge such complaints with the transport carrier.
c) The Customer shall be responsible for insuring the shipment against transport damage. Furthermore, incorrect or faulty deliveries or the incorrect or faulty invoicing thereof must be objected to in writing or by presenting the invoice, delivery note or packing slip within eight days of receipt of the shipment or – in case of defects which are not obviously visible – immediately after gaining knowledge of the defect.
Returns shall be accepted only after prior agreement. Publishing house products that have been supplied with a full right of return in exceptional cases shall only be taken back by the date permitted. When crediting accepted returns, MVB reserves the right to deduct ten percent of the value of the goods as a processing fee. Returns can only be taken back provided they are in perfect condition.
a) Unless otherwise stated, payment of the invoice amount must be made in euros within 30 days of the invoice date without any deductions. Bank transfers and cheques have a debt-discharging effect on the day on which MVB receives the credit advice from the respective financial institution.
b) If the payment deadline is exceeded, all outstanding claims of MVB shall become immediately due regardless of previously granted payment deadlines. The execution of further orders may be made dependent on the settlement of all due claims and the effecting of advance payments – without deduction of a cash discount. MVB reserves the right to offset any advance payments received for further orders – including those made by legal successors of the Customer or clients who are essentially identical to the Customer – against outstanding claims from previous orders – including those made by legal predecessors of the Customer or clients who are essentially identical to the Customer and to suspend the execution of such orders until such time as the claims have been settled.
c) In the event of default or deferment of payment, MVB is entitled to charge interest of eight percent above the base interest rate without sending another notice of default in advance. In addition, MVB reserves the right to withdraw from all existing orders and contractual relationships with the Customer.
d) The subscription fees for magazines are charged in full for the current calendar year at the beginning of each year. The length of the subscription period shall be at least three months. Unless otherwise agreed or statutory regulations require otherwise, it shall be for an indefinite period unless the Customer cancels the subscription in writing to the end of the following month at the latest by the 15th of a month.
8. Business regulations for the book trade
In all other respects, the "Verkehrsordnung für den Deutschen Buchhandel" (business regulations for the German book trade) apply as amended.
II. Provisions Relating to the Provision of Services
a) The service owed by MVB is set out in the agreement made with the Customer.
b) As a basic principle, employees of MVB are not entitled to make separate commitments regarding the capabilities of the services. This shall not apply only if such a commitment is confirmed in writing by the management of MVB.
a) If MVB makes storage space available to the Customer as part of its services, the Customer shall be entitled to warranty rights according to Sections 536 ff. of the German Civil Code if the storage space provided is inadequate.
b) For defects in the storage space provided which already existed at the time of conclusion of the contract, strict liability as defined in Section 536a of the German Civil Code is excluded.
c) MVB shall not be liable for defects in the provision of services to be retrieved from the Internet caused by the functionality of the lines to contractual servers and by power failures.
d) MVB shall provide its services with an availability via the Internet of 98 percent per month (30 days). MVB shall make every effort to keep its Internet offering available to Internet users within this framework; however, it shall not owe the successful retrieval of data in individual cases.
e) MVB has no influence on the data on individual works entered into the VLB database (German directory of deliverable books) by participating publishers and thus assumes no liability for the correctness or quality of the content.
f) MVB receives the data stored in the address book for the German-language book trade (AdB) from the companies participating in the database and thus assumes no liability for the correctness of the content.
a) A one-off set-up fee payable by the Customer is due upon conclusion of the contract.
b) Otherwise, fees shall be calculated and due according to the respective agreements made. The basis of calculation is exclusively the accounting records and counting documents of MVB.
c) The fees payable are exclusive of the statutory value-added tax which is additionally payable at the applicable rate.
d) MVB is entitled to change the amount of the current fees (change in fees). It shall inform the Customer no later than six weeks before the change in fees comes into effect. If the Customer does not agree to a change in fees, he may terminate the contract extraordinarily at the time of the agreed entry into effect of the change in fees. If the Customer does not terminate the contract at the time the change in fees comes into effect, the change shall be deemed approved. MVB must expressly refer to this in its notification.
4. Term of the contract, termination
a) The contract is concluded for the agreed period and commences upon conclusion of the contract.
b) MVB is entitled to terminate the contract extraordinarily without notice if the Customer is in default with the payment of a fee and fails to pay within 14 days of the due date.
c) Notwithstanding the foregoing, the right to terminate for cause remains unaffected. A cause has occurred particularly if the Customer culpably acts in breach of his obligations under the contractual relationship and MVB cannot be expected to wait until the notice period expires.
d) Any notice of termination must be made in writing (letter, fax or e-mail) in order to be effective.
5. Blocking/Deletion of Contents
a) If the Customer stores contents on MVB's servers in the course of providing services, MVB shall not assume any responsibility for this. In particular, MVB is not obliged to check the stored contents and/or other data for their legality.
b) The Customer is liable to MVB for not using the services provided for racist, discriminatory, pornographic or politically extreme or otherwise illegal purposes or purposes endangering the protection of minors or violating official regulations or requirements or for not storing such contents on the servers held available. Furthermore, he is liable vis-à-vis MVB for ensuring that the contents stored by him on the servers held available do not violate third-party rights, especially personal rights and/or industrial property rights. The Customer shall thus indemnify MVB in this connection from third-party claims as well as from the costs of any legal dispute and appropriate legal defence (including lawyer's fees).
c) The Customer is liable to MVB for ensuring that the contents stored by him on the servers held available do not violate third-party copyrights. He guarantees that he is entitled to dispose of the rights required to use MVB's services. The Customer shall indemnify MVB from third-party claims in this connection as well as from the costs of any legal dispute and appropriate legal defence (including lawyer's fees).
d) If a third party lodges a claim against MVB or there is an imminent risk of a claim being lodged because the Customer violates the regulations under lit. b) or lit. c) for reasons for which he is responsible, MVB may block the access of third Internet users to contents and/or other data and/or the access of the Customer to the contractual services if it is possible to demonstrably end the asserted violation by doing so. Further claims of MVB remain unaffected.
e) If the violation is legally established according to lit. d or if MVB and the Customer agree on this, MVB is entitled to delete the contents affected by this.
6. Contractual Obligations of the Customer
a) The Customer shall check data and/or other information for viruses before sending it to MVB and shall use state-of-the-art anti-virus programs.
b) If and as far as MVB's activities permitted by the contract on MVB's servers create a database, databases, a database work or database works – especially through the compilation of data – MVB shall be entitled to all rights thereto. Any rights of the Customer to the data entered by him remain unaffected.
c) The Customer shall take the necessary precautions to prevent the use of the provided service by unauthorised persons. In particular, he shall keep secret the usage and access authorisations assigned to him, protect them from access by third parties and not pass them on to unauthorised users. This data must be protected by appropriate and customary measures. The Customer shall inform MVB immediately if it is suspected that the access data and/or passwords might have become known to unauthorised persons. If the Customer knows of or suspects such action, he shall report this to MVB immediately and take reasonable measures to prevent the copying or distribution of data.
d) The Customer shall back up the data and information he has placed on the servers provided according to their importance and make his own backup copies to enable MVB to recover them in case of loss of data or information.
7. List of available books (VLB – German directory of deliverable books)
a) For the entry of data on titles in the VLB, the respective entry conditions for publishers apply in addition, which can be accessed at any time at www.vlb.de/leistungen/downloadcenter-für-verlage.
b) Through the VLB, MVB offers the Customer the possibility of recording the metadata of a product (in particular the title, author, ISBN, price), the book cover (front page) or a product image, descriptive information (e.g. blurb text and further information about the work or product as well as the Customer's company logo) (hereinafter: VLB data). MVB shall compile the data to create a database and shall be entitled, but not obliged, to pass on the VLB data to third parties, either individually or in the form of the database, including extracts.
c) MVB shall add further information (e.g. automated data of the German National Library) to the VLB data supplied by the Customer which shall be kept in the VLB database. MVB receives the transferable right without any limitation in terms of time and territory to publish, distribute and make publicly accessible the VLB data in any form. This shall not be subject to any licence fee in favour of the Customer.
In the case of simple negligence MVB shall be liable only for a breach of essential contractual obligations or for injury to life, body or the health of a person. This limitation of liability shall also apply to the fault of a vicarious agent within the meaning of Section 278 of the German Civil Code. Liability for consequential damages is limited to the amount of the contractual remuneration in the event of simple negligence except for injury to life, body or the health of a person.
IV. Reservation of the Right of Amendment
In the event of recurring services (continuing obligations, particularly such as the provision of services or the delivery of subscriptions), MVB is entitled to amend the terms of contract on the condition that it notifies the Customer thereof in writing with a notice period of not less than four weeks before the amendment comes into effect. The Customer may object to the amendment with a notice period of four weeks after receipt of such notification, otherwise the amendment shall be deemed approved. If the Customer objects within the time limit, MVB shall be entitled to terminate the contract with a notice period of four weeks after receipt of the objection. MVB must expressly refer to this in its notification.
V. Business Information, Data Protection
a) For the purpose of a credit check, Bürgel Wirtschaftsinformationen GmbH & Co KG, P.O. Box 500 166, 22701 Hamburg, Germany, shall provide to MVB the address and creditworthiness data stored in its database relating to the Customer, including data determined on the basis of mathematical-statistical methods, provided MVB has credibly demonstrated its legitimate interest.
b) For the purpose of taking a decision on the establishment, implementation or termination of the contractual relationship, MVB collects or uses probability values, which are calculated on the basis of address data, among other things.
VI. Final provisions
a) If the Customer is a merchant within the meaning of the German Commercial Code, the courts in Frankfurt am Main or Hamburg, at the discretion of MVB, shall have exclusive jurisdiction for all disputes arising under the respective contract.
b) The Customer is only entitled to assign claims arising under this contractual relationship after obtaining the prior written consent of MVB.
c) MVB is entitled to have the services owed by it provided by subcontractors.
d) The Customer agrees that MVB may transfer its rights and obligations under this contract at any time in whole or in part (acceptance of contract) to a company affiliated with MVB and/or the Börsenverein des Deutschen Buchhandels e. V., Braubachstrasse 16, 60311 Frankfurt am Main, Germany. If the Customer's legitimate interests are affected by such a transfer, the Customer may terminate this contract without notice on the day the transfer takes effect.
e) The contract is subject exclusively to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
60311 Frankfurt am Main