informa Music & Media GmbH as of 11/2009
1. informa’s General Business and Delivery Terms and Conditions apply to all offers; other binding declarations of legal significance; purchase or work and materials contracts and any other contractually specified services agreed with enterprises as defined under section 14 of the German Civil Code – hereinafter referred to as client) with regards to sound, image and other data carriers on CD (and similar) and DVD (and similar) along with all accessories and articles – hereinafter referred to as – products. These conditions shall also apply for all future business dealings with the client.
2. These General Terms and Conditions apply exclusively. informa do not accept any terms and conditions of the client, which conflict with or deviate from these General Terms and Conditions.
1. All offers are subject to change. Technical descriptions and other data in offers, pamphlets and other information are initially non-binding. Specifications in this sense as well as public announcements by informa and their representatives are only an integral part of the specification of services if this is explicitly referred to in the contract.
2. informa do not enter into a contractual obligation until a written order confirmation has been sent, which may also take the form of an invoice.
The client will provide all necessary materials to produce sound, image and other data carriers, such as master tapes, print film, lithographs etc. free of charge and deliver them to the registered informa office in Gütersloh.
Handing over the applicable material constitutes a commitment on part of the client. informa are not required to check the materials provided by the client for quality and suitability with regards to content or technical suitability.
informa are not liable for any faults and damages caused by faulty or damaged materials.
informa will keep the materials for a maximum period of 12 months. informa reserve the right to return the materials to the client on freight collect basis after this period has passed. An additional fee for a new Glasmastering will be charged for any subsequent orders placed after this 12 month period.
1. The only delivery deadline accepted is a date specified within the order confirmation issued by informa.
2. The delivery date specified by informa becomes invalid if informa do not receive the necessary materials in time and/or in an unsuitable format. informa will set a new delivery date after receiving the necessary and/or suitable materials.
3. If, after signing of the contract, it emerges that the client cannot provide an adequate guarantee of solvency and that informa’s entitlement to payment is at risk, in particular if the client fails to satisfy informa’s claims which have fallen due, then informa is entitled to decline to effect delivery until the client has made the outstanding payments or put up security for them.
informa is entitled to withdraw from the contract if payment or provision of security is not made within 12 working days after being demanded.
4. informa is entitled to make partial deliveries.
5. informa will be released from their obligation if they do not receive deliveries despite having placed appropriate orders with reliable suppliers.
6. In the case of late delivery for which informa are responsible, a period of grace of 3 weeks (domestic) and 6 weeks (international) is regarded as appropriate. This grace period starts on the date informa received the seller’s reminder. The client has the right to demand compensation in place of delivery or withdraw from the contract if informa do not deliver within this grace period.
informa’s liability is, however, limited to the amount of typical, foreseeable damages within the frame of the contract unless it is a matter of wilful intent or gross negligence.
In particular, informa shall not be held liable for third party contractual penalties incurred by the client or penalties from guarantee agreements the client has entered into.
7. If the client is responsible for the delivery or collection being delayed, then he/she shall pay a compensation for the arising storage expenses at the flat rate of 1 % of the purchase price per month commenced. informa’s other statutory rights shall remain unaffected.
8. If the time of delivery cannot be met due to industrial action such as strike or other events beyond the control of the supplier such as war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions, then the delivery time is extended by a reasonable period.
The same shall also apply if such circumstances occur to informa’s suppliers or subcontractors. informa are not liable for such circumstances, not even if they occur while informa is already behind schedule. The fulfilment of the contract may be suspended in such cases.
9. If the fulfilment of the contract or any part thereof is suspended by reason of clause no. 4 (8) for more than 180 consecutive calendar days, either party may cancel the outstanding part of the contract by notice in writing given to the other party.
10. informa have done what is required for the fulfilment of the contract when the client was notified that the goods are ready for collection or, in case of delivery, that the goods are ready to be sent out.
1. Place of delivery and performance of informa’s and the client’s contractual obligations is the informa headquarters in Gütersloh.
2. The client is under obligation to collect the goods from informa. informa has the right to decide whether or not to deliver the goods to the client. In the latter case, goods are delivered from the informa headquarters at the client’s expense.
3. The risk of accidental loss and accidental deterioration shall pass to the client as soon as he/she has received notice of readiness for collection. If informa agree to deliver the goods, then the risk shall pass to the client at the time at which it is handed over to the carrier. If the client is responsible for the delivery being delayed, then the risk shall pass to the client upon receipt of the notification that the product is ready for delivery.
1. If no fixed price has been agreed, services shall be charged according to the price list valid at the time of order acceptance. This also applies if the client is late in providing informa with the necessary materials during a fixed price agreement.
2. Unless otherwise agree, the prices are quotes are ex informa headquarters in Gütersloh or the location of a subcontractor commissioned by informa. VAT will be calculated separately. informa reserve the right to set rates by their own reasonable assessment if no price agreement exists for any special request made by the client.
3. Payment for goods is due as soon as it has been handed over to the client or to the carrier or upon receipt of invoice. informa reserves the right to demand payment before any goods are delivered.
4. Default of payment begins on the day the payment is due. informa have the right to start debt collection procedures 1 day after the payment is due. A fee of € 5.00 is charged for each reminder sent after default occurs, notwithstanding any assertion of further damages. The client shall have the right to furnish evidence of an absent or minor damage.
5. In the event of default in payment, the client is required to pay informa an interest rate of 1% per month. informa reserve the right to claim a higher; the client reserves the right to provide evidence of a lower interest rate.
6. The client shall be entitled to enforce a right of retention or offset only if his/her counterclaims are either uncontested, recognized by declaratory judgment or have been accepted by informa.
7. A deduction of cash discount from new invoices is not acceptable as long as previous invoices remain unpaid.
1. The client must inspect the goods very carefully with respect to discernable faults. If any faults are found, he/she must notify informa immediately. If the client fails to give such notification, the goods are considered to be approved, apart from defects which would not be detected during the inspection.
Again, the client is required to notify informa immediately should such hidden defect be discovered. Otherwise the goods will be considered as approved.
2. The client has the same duties of inspection and complaint that also apply to surplus or deficient delivery and have the same legal consequences. Surplus or deficient deliveries up to 10 % are considered accepted.
3. informa is liable for the delivered goods to the exclusion of any further claims as follows:
a. Client may not derive any additional rights from defects which do not impair, or only to a negligible extent, the value of the goods or their suitability for use as recognized by informa.
b. If the goods have evident defects on the passing of risk, informa have the right and duty to remedy such defects.
The warranty is fulfilled either by removal of the defect (may be repeated) or by replacement, subject to choice by informa. informa may also, at their discretion, reserve the right to subsequently replace the goods in question instead of removing their defect. Replaced goods or parts of goods are to be returned to informa (carriage paid).
c. If subsequent performance ultimately fails, does not take place in an appropriate period fixed by client or is refused, the client is entitled, at his/her choice, to withdraw from the contract or to demand abatement of the purchase price (reduction) or to claim damages within the limits of paragraph (d) to (g).
The client is not entitled to repair the defect himself and claim compensation for the cost incurred as a result.
d. If the material defect is the cause of a loss or injury we accept liability in accordance with the statutory provisions if it is a personal injury, or the loss or injury falls under the terms of ProdHaftG or is the result of intention or gross negligence.
e. In all other cases, informa shall be liable only insofar as the damage was caused by the negligent breach of a substantial contractual obligation or a „cardinal duty“. Liability is limited to the foreseeable loss or damage which is typical of the contract.
f. Further contractual claims or tort claims by the client are excluded. informa are not liable for damage not incurred to the delivered goods themselves or for any lost profit or other financial loss to the client.
g. In the case of third party products, liability is confined to assignment of the claims which accrue to informa against the supplier of the third party products.
1. Provisions in No. 7 para. 3 (d) to (g) also apply to claims for compensation as a result of other breaches of contract by informa.
2. In the event of breach of a precontractual obligation or of a hindrance to performance existing at the closing of contract, informa’s liability for damages shall be limited to the negative interest.
3. informa’s liability in tort are set out in provisions of No. 7 para. 3 (d) to (g).
4. informa are not liable for claims arising from an infringement of third party intellectual or industrial property rights – except in cases of intent or gross negligence.
The client may withdraw from the contract if breach of contract on part of informa that is not based on a material defect occurs, the legal requirements are fulfilled.
1. Warranty claims on the grounds of material defects -§ 479 BGB [German Civil Code] expire 12 months after the delivery of the goods according to No. 5 para. 2 and 3.
d. Claims for compensation shall be time-barred within the statutory period if it is a personal injury, or the loss or injury falls under the terms of ProdHaftG or is the result of intention or gross negligence.
3. Any claims made against informa lapse six months after their occurrence.
1. The client guarantees that he/she has the right to reproduce the sound, image and other data carriers.
He/she guarantees that a reproduction of those does not infringe any copyright and related rights, other industrial property rights, competition regulations, criminal laws or provisions for the protection of young people.
The client carries sole responsibility to obtain any licenses that are necessary to reproduce and distribute the sound, image and other data carriers.
If both parties agree that informa is responsible to obtain and pay for such licenses, then informa are entitled to request that the client makes an advance payment and to suspend the production of sound, image or other data carriers until the client’s payment has cleared.
In such cases, the client must supply informa with all information necessary to register with all relevant organizations, no later than at the time the materials are handed over.
2. If a third party makes a claim against informa on the grounds of infringement of any of the aforementioned rights, the client shall indemnify informa from all costs resulting from such claim including all litigation and extra-judicial costs.
informa are under no obligation to defend themselves against such claims.
informa will notify the client immediately of any such third party claims on the grounds of infringements any of the aforementioned rights. The client is obliged to contact the third party immediately and to declare their responsibility for the product.
1. Ownership of the goods delivered is only transferred to the client upon full payment incl. including accessory claims, compensations for damages with regards to the agreement between informa and the client.
2. The client has to inform any third party making claims on the goods delivered of the reservation of proprietary rights and notify informa accordingly. If the goods are seized, the client must send a copy of the report on assets seized.
3. In the event of late payment, deterioration of the asset situation and/or an application for insolvency proceedings to be opened against the client, the seller is entitled to collect the goods covered by the reservation of ownership.
The client right to process and sell the goods shall end at that time.
The client allows us entry to his/her premises to take possession of the goods delivered reservation of title.
4. The client is entitled to keep selling the goods until otherwise stated by informa if he/she had ordered the production of the goods for that particular purpose.
If the client is in possession of goods that have been delivered with a reservation of ownership, then he/she transfers the whole claim for purchase price, wages or other claims to informa.
The assignment must be disclosed upon request. informa hereby accepts the assignment.
5. The client has the right to collect the assigned claims. This right is withdrawn if a payment term specified by informa expires without results, which was set by informa with the warning that the assignment will be disclosed to the client’s buyers.
The client is obliged to disclose the information for all buyers of goods produced by informa including names and addresses, if he/she has handed the goods over to the relevant buyers.
6. Enforcement of the reservation of ownership shall not constitute a withdrawal from the contract.
7. As long as the goods remain the property of informa, processing or transformation shall always take place on behalf of informa but without any obligation being imposed upon them. In the event that (joint) ownership by informa expires, then it is now agreed that the client’s (joint) ownership of the unitary object is transferred to informa in proportion to its value (amount of invoice). The Client shall keep informa’s (joint) ownership without charge.
8. In the event that the receivables of the client from the sale of the title retention goods should be included in a revolving credit line account, the client herewith also assigns client’s receivables from said revolving credit line account owed by client’s customers to informa.
Assignment shall take place at the amount of the resale price of the reserved goods including VAT. Insurance and damage claims against their customers are assigned at the same time.
9. Where in respect of the above rule the account receivable is not assigned at all or not assigned to the amount ruled for any reason, the client’s account receivable due from the latter’s client is assigned to informa to the amount of the invoice value of the goods under retention contained in the relevant account receivable.
If the first or any further instalments of the total claim have been satisfied, without payment claims made by informa against the client being fulfilled, then the assignment shall include the primary subsequent payment claim made by the client against his/her customers.
10. The client transfers the rights to the sound recording as sound carriers according to § 85 of the Copyright Act as security until the payment claim made by informa has been settled in full.
He/she shall also transfer his/her rights according to § 85 of the Copyright Act including rights against the Performing Rights Society to informa as security. Until otherwise stated, the client retains all ancillary copyrights of the sound carrier including rights according to § 85 of the Copyright Act in their own name and on their own account, judicially and otherwise.
This right is withdrawn if the client has not met informa’s demands, after informa have set a grace period of at least 3 weeks with the warning, that all rights of the producer of the sound carrier and any according to § 85 of the Copyright Act will be claimed by informa and disclosed to third parties.
11. If the client is not the owner of the ancillary copyrights of the sound carrier or if he/she is not permitted to transfer those rights, then he/she shall transfer the rights to reproduced video recordings as film producer according to §§ 94, 95 of the German Copyright Act to informa under same conditions and the same terms as a security, including any payment claims made against any organization the client is a member of.
If the client does not own the rights to the sound carrier nor the rights as a film producer or is not permitted to transfer those rights, then he/she will transfer the right of the producer of a database according to § 87 b) of the German Copyright Act over to informa under the same conditions as above.
12. Any copyrights transferred to informa will be returned as soon as the client has settled all outstanding claims with regards to the production of the goods including ancillary claims. informa and the client hereby agree that all rights shall be returned as soon as this condition has been fulfilled.
13. If the value of the existing securities exceeds the secured claims by a total of more than 20% or by the percentage permitted under the relevant jurisdiction, the seller shall, at the request of the client, release securities at informa’s choice in respect of the excess value.
14. The client shall help with any special formalities that may be required according to the legislation of the client’s country. If a reservation of ownership is, according to the legislation of the client’s country, not permitted, then the type of security applies that most resembles that of the reservation of ownership according to German law.
informa have the right to label the sound, image or other data carriers with their own, subtle but visible logo should they chose to do so. informa have the right to self-advertise in a manner consistent with industry standards while making a reference to the client or the sound, image or other data carrier.
1. Jurisdiction is Gütersloh if the client is a business owner, legal entity under public law or special fund under public law.
This also applies if the client has no general place of jurisdiction within the Federal Republic of Germany, or changes his / her general place of jurisdiction or place of residence to a place outside of the Federal Republic of Germany, or his place of residence is not known by the time the complaint is filed.
informa are entitled to take proceedings against the client in any other court which holds jurisdiction over the particular dispute under the law of the Federal Republic of Germany or of the home country of the client.
2. Contractual relations between inform and the client shall be governed by German law to the exclusion of UN Convention on Contracts for the International Sales of Goods (CISG) and to the exclusion of all international contracts for the purchase of goods and international law.
1. The invalidity of individual provisions of these General Terms of Purchase shall not affect the validity of the remaining provisions. If this is the case, then all parties shall use their efforts to replace the ineffective or non – enforceable clause by an effective and enforceable one which is as close as possible to the purpose of clause to be replaced. The same applies to potential loopholes.
2. There are no additional verbal agreements. Any changes made to these provisions must be agreed in writing. This includes an agreement about withdrawing the requirement regarding written form.
3. informa point out that all business data used within the framework of normal administrative procedures are stored on a computer system.
4. This version of the General Terms and Conditions renders all previous versions invalid.