MUSIC & MEDIA GmbH
phone + 49 (0) 52 41 – 4 00 05-0
fax + 49 (0) 52 41 – 4 00 05-56
Tax number: 351/5241/1568
HRB: 11389 Gütersloh
informa Music & Media GmbH as of 11/2009
1. General provisions
1. The general business and delivery conditions of informa apply to all offers, other legal declarations, purchase, work delivery and work contracts and other contractual services for sound, image and other data carriers on CD and CD derivatives as well as DVD and DVD Derivatives and all accessories and articles – hereinafter also referred to as goods – apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (hereinafter referred to as the purchaser). They also apply to all future business with the customer.
2. These terms and conditions apply exclusively. Informa does not recognize any terms of the customer that conflict with or deviate from these terms and conditions, not even through the unconditional execution of the contract.
2. Conclusion of contract
1. The offers from informa are subject to change. Likewise, technical descriptions and other information in offers, brochures and other information are initially non-binding. Information in this sense as well as in public statements by informa or its assistants only become part of the service description if the contract expressly refers to them.
2. Informa is only contractually binding when the written order confirmation is sent, which can also take the form of an invoice.
3. Obligations of the customer
The customer shall provide informa free of charge with all the production materials required for the production of the sound, image and other data carriers, such as master tapes, print films, lithographs, etc., at informa’s headquarters in Gütersloh.
The handover of the manufacturing materials is an act of cooperation on the part of the customer. Informa is not obliged to check the material and technical suitability of the materials handed over by the customer.
Informa is not liable for defects and damage resulting from the fact that the manufacturing materials provided are defective or defective.
For manufacturing materials, Informa will keep them for a maximum of 12 months. Thereafter, informa is entitled to send the production materials back to the customer freight collect. If the goods are reissued after 12 months, the costs for a new glass mastering will be charged.
4. Delivery time
1. The delivery date is only a date specified in the Informa order confirmation.
2. If Informa does not receive the required manufacturing materials in time and / or not in a usable version, a delivery date communicated by informa will lapse. Informa will then announce a new delivery date after receipt of the required and / or usable manufacturing materials.
3.If after conclusion of the contract it turns out that the customer does not offer a sufficient guarantee of his solvency and that informa’s payment claim is at risk, especially if the customer does not meet due claims from informa, Informa is entitled to refuse delivery until the customer made the outstanding payments or provided security for them.
If payment or security is not made within 12 working days after a request, informa is entitled to withdraw from the contract.
4. Informa is entitled to make partial deliveries.
5. If informa itself is not supplied, although it has placed identical orders with reliable suppliers, it is released from its obligation to perform and can withdraw from the contract.
6. In the event of delivery delays for which informa is responsible, a grace period of 3 weeks (domestic) and 6 weeks (foreign) is considered appropriate. The period begins with the receipt of the letter of formal notice from the customer at informa. If informa does not deliver within the grace period, the customer is entitled to claim damages instead of the service or to withdraw from the contract.
However, informa ‘s liability is limited to the foreseeable damage of the customer typical for the contract, insofar as informa executives have not acted with gross negligence or with intent.
In particular, informa is not liable for contractual penalties forfeited by the customer in relation to his contractual partner, as well as the consequence of guarantee commitments by the customer.
7. If shipping or pick-up is delayed for reasons for which the customer is responsible, the customer must contribute to the storage costs at a flat rate and without proof of the effective costs with 1% of the invoice amount per month or part thereof. The other legal claims of informa remain unaffected.
8. The delivery time will be extended appropriately if industrial action, in particular strikes and lockouts or other unforeseen circumstances outside the sphere of influence of informa, in particular force majeure, war, riot, fire, explosion, accident, flood, sabotage, fulfillment of state requirements, laws, Regulations, orders, measures or judicial orders affect the delivery of goods.
This also applies if such circumstances occur with informa’s suppliers and subcontractors. informa is not liable for such circumstances, even if they occur at a time when informa is already in default. In these cases, the fulfillment of the contract can be suspended.
9. If the fulfillment of the contract or a part of the contract is suspended for more than 180 consecutive calendar days due to the provision in No. 4 (8), each party can withdraw from the then unfulfilled part of the contract by written notice to the other party.
10. Informa has in turn done what is necessary to fulfill the contract if it has reported the goods to the customer as ready for collection or, in the case of shipping, makes the goods available for shipping.
5. Place of performance and performance; Transfer of Risk
1. The place of performance and fulfillment for the contractual obligations of Informa and of the customer is the seat of informa in Gütersloh.
2. The customer is obliged to collect the goods from informa. Informa is free to deliver the goods to the customer. In this case, delivery will take place from the seat of informa at the expense of the customer.
3. The risk of accidental loss or deterioration passes to the customer at the point in time when he receives the message that he can collect the goods from informa. If Informa sends the goods, the risk is transferred when informa hands the goods over to the carrier. If shipping is delayed for reasons for which the customer is responsible, the risk passes to the customer when the delivery is ready.
6. Prices and terms of payment
1. If no fixed price has been agreed, informa is entitled to determine the remuneration for the goods taking into account suitability and customary practice. Informa is also entitled to this right if the customer defaults on the transfer of the production materials to informa in a fixed price arrangement.
2. Unless otherwise agreed, the prices are to be understood from the headquarters of Informa in Gütersloh or from the headquarters of the subcontractor commissioned by informa. The sales tax is calculated separately. If there is no price agreement for special requests of the customer, informa is also entitled to determine the fee at its reasonable discretion.
3. The remuneration for the goods is due upon handover to the customer or the carrier or upon receipt of the invoice by the customer. Informa is entitled to make the handover dependent on the payment of the fee.
4. The customer’s default in payment occurs on the day the claim becomes due. Informa is entitled 1 day after the due date of the claim to collect it without prior warning. Subject to higher damage, the purchaser must pay informa the amount of € 5.00 for each reminder after the default occurs. The customer reserves the right to provide evidence of missing or less damage.
5. In the event of a delay in payment, the customer is obliged to pay default interest of 1% per month to Informa. Informa remains free to assert a higher interest rate, the customer the proof of a lower interest rate loss.
6. The customer may only assert a right of retention or set-off if the customer’s claims and claims have either been undisputed, have been determined by a court or have been recognized by Informa.
7. As long as old invoices are open, an agreed cash discount deduction is not permitted.
7. Material defects
1. The customer is obliged to carefully inspect the goods for defects immediately. Should he discover a defect, he is obliged to immediately inform Informa of the defect. If he fails to do so, the goods are deemed to have been approved unless they have defects that were not discernible after a careful inspection.
If such a hidden defect becomes apparent, the purchaser is also obliged to inform this immediately. Otherwise, the goods are also considered approved with regard to this defect.
2. The purchaser is subject to the same inspection and notification obligations with regard to an over or under delivery with the same legal consequences. Excess or short deliveries of up to 10% are considered approved.
3. Informa is liable for delivered goods with the exclusion of further claims as follows:
a. The purchaser cannot derive any further rights from material defects which do not or insignificantly affect the value and suitability of the goods for the use recognizable by Informa.
b. If the goods have a material defect when the risk passes, Informa is entitled and obliged to remedy the defect.
At informa’s discretion, supplementary performance is carried out by reworking (also several times) or replacement delivery. Informa is also entitled to switch from rectification to replacement delivery at its discretion. Replaced goods or parts of goods are to be returned carriage paid to informa.
c. If the subsequent performance finally fails, is not carried out or is refused within a reasonable period set by the customer, the customer is entitled to choose to withdraw from the contract, a reduction in the purchase price (reduction) corresponding to the defect value or – within the limits of the following paragraphs ( d) to (g) – to claim damages instead of performance.
The purchaser does not have the right to rectify the defect and to reimburse the costs incurred.
d. If a material defect leads to damage, Informa is liable in accordance with the statutory provisions, provided that it is personal injury, the damage falls under the Product Liability Act (ProdHaftG) or is based on intent or gross negligence.
e. For the rest, Informa is only liable if the damage is based on the culpable violation of an essential contractual obligation or a “cardinal obligation”. Liability is limited to damage typical of the contract.
f. Further contractual and tortious claims of the customer are excluded. Informa is therefore particularly not liable for damage that has not arisen in the delivery item itself and for loss of profit or other financial loss of the customer.
G. In the case of third-party products, liability is limited to the assignment of claims that Informa has against the supplier of the third-party products.
8. Other liability for damages
1. The provisions in No. 7 prov. 3 (d) to (g) also apply to claims for damages due to other breaches of duty by Informa.
2. In the event of a breach of a pre-contractual obligation or an obstacle to performance that already existed when the contract was concluded, Informa’s obligation to pay compensation is limited to the negative interest.
3. The provisions in No. 7 prov. Apply to the tortious liability of Informa. 3 (d) to (g) accordingly.
4. With the exception of intent or gross negligence, Informa is not liable for the freedom from property rights of third parties.
Due to a breach of duty by Informa that does not consist of a material defect, the customer can only withdraw if the legal requirements are met and Informa is responsible for the breach of duty.
1. Claims of the customer due to material defects become statute-barred – except in the case of intent – subject to § 479 BGB in 12 months from collection or delivery of the goods acc. No. 5 no. 2 and 3.
2. Claims for compensation expire within the statutory period, provided that it is personal injury, the damage falls under the ProdHaftG or is based on intent or gross negligence.
3. In addition, all claims against informa expire 6 months after registration.
11. Rights guarantee
1. The customer guarantees that he is entitled to reproduce the sound, image or other data carriers.
In particular, he guarantees that the reproduction does not violate copyrights and related rights, other industrial property rights, competition law, criminal law or youth protection regulations.
The purchaser bears the sole responsibility for the acquisition of rights of use from collecting societies, which are necessary for the duplication and distribution of the audio, visual or other data carriers.
Should the parties register and pay for such licenses through Informa, Informa is entitled to request the purchaser to pay the resulting expenses as an advance payment and to discontinue the production of the audio, video or other data carriers as long as the purchaser makes the necessary advance payment has not provided.
In this case, the customer will informa informa at the latest when the production materials are handed over, all the information needed for the proper registration with all relevant collecting societies.
2. If informa is used by third parties because of the violation of one of the aforementioned rights, the purchaser releases Informa from all costs associated with the claim, including court and lawyer costs.
Informa is not obliged to defend itself against the claim.
As soon as third parties make use of informa because of the violation of one of the rights mentioned, Informa will notify the customer immediately. The customer is obliged to contact the third party immediately and to accept responsibility for the manufacture.
12. Retention of title and assignment of security
1. The ownership of the goods is only transferred to informa from the business relationship with the customer once all claims including additional claims and claims for damages have been paid in full.
2. The customer is obliged to point out the retention of title to any third party who claims the delivered goods and to inform Informa accordingly. In the case of garnishments, a copy of the garnishment log must be sent.
3. In the event of a delay in payment, deterioration in assets and / or an application to open insolvency proceedings against the customer, informa is entitled to collect the goods delivered under retention of title.
At this point, the authority of the customer to process and sell the goods ends.
In this case, the customer grants informa access to the goods delivered under retention of title.
4. If the purchaser had the goods manufactured for commercial resale, he is entitled until further notice by informa to resell the goods to commercial customers.
If the customer has goods delivered under retention of title, he is now assigning any purchase price, wages or other claims to Informa.
The assignment must be disclosed on request. Informa hereby accepts the assignment.
5. The customer is entitled to collect the assigned claims. He loses this entitlement if a payment deadline set by informa elapses, which Informa set for him with the threat to disclose the assignment to the buyer’s customers when the deadline expires.
The customer is obliged to immediately inform Informa of all customers of the goods manufactured by Informa, stating names and addresses, insofar as he has handed over the goods to the respective customer.
6. The enforcement of the retention of title does not constitute a withdrawal from the contract.
7. As long as the goods remain the property of informa, processing or transformation is always carried out on behalf of informa, but without any obligation for them. If the (co-) ownership of informa expires as a result of a connection, it is already agreed that the (co-) ownership of the purchaser in the uniform item passes to informa in terms of value (invoice value). The purchaser keeps the (joint) ownership of informa free of charge.
8. If the customer has agreed a current account with his customer, instead of the assigned claim from the individual transaction between the customer and his customer, the customer’s claim from the current account is assigned to informa according to the same conditions.
The assignment of the claim from the current account takes place in the amount of the resale price of the reserved goods. Insurance and damage claims of the customer against his customer are assigned at the same time.
9. Insofar as the customer’s claim against his customer from the delivery of goods or current account exceeds Informa’s claim against the customer, the assignment to Informa relates to the first partial amount of the customer’s claim against the customer.
If the first partial amount or a further partial amount of the total claim has been satisfied without Informa’s payment claims against the customer having been fulfilled, the assignment extends to the customer’s subsequent first payment claim against his customer.
10. The buyer transfers Informa his rights to the sound recordings reproduced by informa as sound record manufacturer from § 85 Copyright Act (UrhG) for security until the complete payment of Informa’s claim.
At the same time, he cedes Informa for security his claims from § 86 UrhG including claims against the society for the utilization of performance protection rights GmbH. The purchaser is entitled, until revoked by Informa, to exercise the intellectual property rights of the record carrier including the claims from § 86 UrhG in his own name and on his own account, in and out of court.
This entitlement ends if the customer has not satisfied Informa’s claims from the production of the sound carrier after informa has given it a period of at least 3 weeks to fulfill the claims with the threat of exercising all rights of the sound carrier manufacturer after the deadline has expired without result and to disclose to third parties the transfer of the rights of the record carrier or the assignment of the right from § 86 UrhG.
11. Insofar as the purchaser is not the owner of the performance protection rights of the record carrier or is not allowed to transfer the rights, he transfers his rights as a film producer to the film reproduced by Informa under the same conditions and with the same stipulations to Informa. Sections 94, 95 UrhG, including claims for remuneration against the collecting society, of which the customer is a member.
Insofar as the customer is neither the owner of the rights of the sound carrier manufacturer nor the rights of the film producer or may transfer their rights, he transfers Informa according to the above stipulations and under the above conditions the rights of the manufacturer of a database acc. Section 87 b) UrhG.
12. With the full settlement of informa’s claim from the manufacture of the goods and any additional claims, the ancillary rights transferred to informa fall back on the customer without further notice. In this respect, Informa and the customer already agree on the relapse of the rights when the condition occurs.
13. If the value of the existing collateral exceeds the secured claims by more than 20% or the percentage permissible according to the case law, informa is obliged to release collateral at the option of informa at the request of the purchaser to the extent of the over-collateralisation.
14. If certain formalities have to be observed for the agreement of the retention of title according to the laws of the ordering country, the ordering party must cooperate in this. If the retention of title is not possible according to the laws of the ordering country, the safeguard is deemed to have been agreed which comes closest to the retention of title under German law.
13. Labeling and advertising
Informa is entitled to discreetly but visibly label the produced audio, video or other data media with its own brand. Informa may advertise itself in the manner customary in the industry with a reference to the customer or the sound, image or other data medium produced.
14. Place of jurisdiction and applicable law
1. Place of jurisdiction is Gütersloh if the customer is a merchant, a legal entity under public law or a special fund under public law.
The same applies if the purchaser does not have a general place of jurisdiction in Germany, relocates his domicile or habitual place of residence after the conclusion of the contract or his domicile or habitual domicile is unknown at the time the complaint is filed.
Informa is entitled to sue the customer in any other court which, according to the laws of the Federal Republic of Germany or the customer’s home country, is responsible for the dispute in question.
2. German law applies to the contractual relationships between informa and the purchaser, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and with the exclusion of all international contracts for the purchase of goods and international law.
15. Final provisions
1. The ineffectiveness of individual provisions does not affect the effectiveness of the remaining provisions of these general terms and conditions. In this case, the ineffective clause is to be replaced by a provision that comes closest to the economic sense of the ineffective provision. The same applies to gaps.
2. Verbal side agreements have not been made. If a provision is to be deviated from, the written form is required. This also applies to an agreement with which the written form requirement should be waived.
3. Informa would like to point out that all business data is saved within the scope of the usual administrative effort with the help of an EDP system.
4. This version of the general terms and conditions of business and delivery overrides all previous versions