DEUTSCHLAND | EN

General Terms and Conditions

GENERAL TERMS AND CONDITIONS

 

 

I. GENERAL PROVISIONS AND SCOPE

 

These General Terms and Conditions (GTC) apply to all current and future business relationships between ARGUS DATA INSIGHTS Deutschland GmbH (contractor) and the client/customer. They apply only to legal transactions that serve the commercial or independent professional activity of the customer. They do not apply to customers who are consumers in the sense of §13 BGB [German Civil Code].

II. TYPE AND SCOPE OF THE SERVICE

 

1. Order placement

Orders can be placed in writing, electronically or by fax. The order is concluded when the customer has received a written confirmation in which the nature and scope (topic, media circles, fees, etc.) of the order are precisely described. The customer undertakes to examine the information carefully and to contact the contractor immediately in case of deviations.

2. Termination and term

2.1 The termination of orders is possible with a notice period of three months at the respective end of the monthly billing period; at the earliest at the end of the minimum term. Termination requires the written form.

2.2 The right to extraordinary termination for good cause remains unaffected.

2.3 The minimum term of an order for media monitoring is twelve months.

2.4 The customer undertakes to accept clippings, which are still being researched until the end of the order, until at the latest three weeks after the end of the order. Settlement is done with the final invoice.

3. Order processing

3.1. All deliveries – including electronic delivery – are made at the risk of the customer. The customer bears the resulting shipping costs. In the event of non-delivery due to force majeure, no claims for compensation can be asserted.

3.2. There is no entitlement to delivery on nationwide public holidays and public holidays in the states of Berlin and Brandenburg. Such delivery only occurs with a separate additional agreement.

4. Media monitoring

4.1 The media received by the contractor from the day the order is placed will be evaluated, regardless of the date of publication. The contractor reserves the right to change the content of its media programme at any time. Significant changes to the media programme by the contractor shall be communicated to the customer.

4.2 The customer may change the content of its order (topic, number of keywords, mediacircle, etc.) at any time during the term of its order by notifying the contractor of this by 2 pm on the day before the change. The order change will be observed after written confirmation and on the following working day. The change does not apply to clippings already in production.

5. Media resonance analysis & press summaries

The contractor endeavours to adhere to the expected preparation date communicated with the order confirmation. In the event that this date is exceeded, a default is present only if the customer has set a reasonable grace period. The media clippings that are available at the time of the preparation of the press summaries or for the period of analysis, which the customer provides either no later than five working days before the agreed preparation date or which originate from a media monitoring order issued in parallel by the customer, will be processed. The integration of delivered media clippings after placement of the order requires a comprehensive revision of the result. This will take place for an additional fee. The clippings underlying the analyses and press summaries shall be made available to the customer on request. For periodical media resonance analyses or press summaries, the customer may change the nature and extent of their order subject to charges. The change will take effect upon written confirmation.

6. Optimisation of customer results and tracking software

In order to optimise customer results, tracking software is used in the ARGUS Portal. The customer agrees to this by using the ARGUS Portal.

7. ARGUS Portal

7.1 Access to the ARGUS Portal, which provides up-to-date information on the search result, is made available to the customer as a single
user license.

7.2 Previews provided in the ARGUS Portal are for informational purposes only. Any use beyond mere viewing requires separate licensing.

7.3 The customer has the option of uploading its own files to the ARGUS Portal. The use of this option by the customer requires that copyrights, property rights, industrial property rights and contractual or other rights of third parties are not violated. The customer is obligated to obtain the appropriate rights if necessary and to observe the corresponding license agreements – especially the permissible residence time. The customer will be provided with a username and password by the contractor for the use of the ARGUS Portal. The customer is obliged to protect the username and password against unauthorised access by third parties. For security reasons, the password must be changed at least every three months. If the username or password is lost, the contractor must be informed immediately.

 

 

III. CONDITIONS | PAYMENT

 

1. The prices in the price list valid at the time of placing the order apply as agreed. Changes are reserved and will take effect with a notice period of four weeks after notification. In the event of a price increase, the customer is entitled to an extraordinary termination right. This must be exercised within two weeks after notification of the price increase. The termination will take effect only at the point in time in which the price increase takes effect. Invoices are generated monthly from the start of the order; for single orders for analyses or press summaries invoices are generated after the preparation of the materials. Any credits will be offset separately with the current accounting period. The invoice is due for payment without deduction immediately upon receipt. The prices are exclusive of the statutory value added tax. The delivered clippings/recordings, analyses and press summaries remain the property of the contractor until final payment of the respective invoice. Failures due to unforeseen events, force majeure or strike do not release from the obligation to pay the basic charges.

2. If the contractor uses separately invoiced services of third parties for the customer, the contractor is entitled to pass on increases in the purchase prices to the customer.

3. If the customer is in arrears with the payment of outstanding claims, the contractor is entitled to block access to the ARGUS Portal and to withhold deliveries.

4. If the customer is in default of payment for more than 3 weeks, the contractor is entitled to terminate the contract without observance of the deadline. The right to assert further claims due to default in payment remains unaffected.

 

IV. COPYRIGHT | OBLIGATIONS OF THE CUSTOMER

 

 

1. Copyright

The contractor shall make available the clippings/recordings on the basis of corresponding license agreements and/or within the framework of existing copyright laws. These license agreements and laws stipulate that the delivered clippings/recordings may only be used for internal documentation purposes and for other proprietary use within the meaning of § 53 of the Copyright Act [Urheberrechtsgesetz]. The customer is therefore only permitted to usage within this scope. This also applies to clippings/recordings that are supplied as part of analyses and/or press summaries. For electronically delivered clippings, a corresponding contract of the client with PMG Presse-Monitor GmbH is additionally required. Upon request, the contractor is entitled to notify PMG, on request, of the name of the customer who receives electronic delivery of articles to be licensed via PMG. The scope and content of the order may also be communicated.

2. Obligations of the customer

After receiving the clippings/recordings as well as when placing proprietary articles and files, the customer itself is responsible for compliance with and observance of copyrights, property rights, intellectual property rights and compliance with other rights of third parties and is solely liable for violations of these rights committed by it. The customer undertakes to indemnify the contractor as well as its legal representatives and employees from claims of third parties based on violations committed by the customer. In addition to claims for damages, this indemnification also covers the entire costs of legal action and legal defence.

3. Data protection obligations of the customer

3.1. The customer is responsible for the monitoring of and compliance with data protection regulations. This applies in particular to personal data provided for the transmission of information.

3.2. The customer is aware that the processing of this personal data is necessary for the transmission of information for the fulfilment of the contract. The contractor shall not process this personal data beyond what is necessary to provide information for the fulfilment of the contract.

 

 

V. COMPLAINTS, WARRANTY, LIABILITY AND STATUTE OF LIMITATIONS

 

1. Complaint, warranty

1.1. Media monitoring

Due to the impossibility of completely excluding human error in media research, a guarantee of completeness cannot be assumed. The contractor also assumes no responsibility for the researched online articles still being available on the Internet at the link specified at the time of the client’s request. The customer is obliged to check the received clippings without delay. In addition, in the case of events for which an increased media volume is to be expected in connection with the customer’s research, the customer is obligated to immediately check in the free ARGUS Portal whether the number of clippings found exceeds the expectations. If the quantity exceeds the expectations of the customer, the customer is obliged – if it wishes to reduce them in the future – to contact the contractor  immediately in order to have a corresponding adjustment of the research order carried out. Clippings found up to this adjustment will be invoiced.

If the customer receives defective or incorrectly delivered clippings that do not correspond to the contents of its order, the customer must make a complaint about this within 14 days of receipt of the delivery. The complaint must be made in writing with return of the relevant details. Complaints made about clippings that were changed by the customer (labelled, cut or similar) will not be recognised as complaints. If the order is invoiced per unit, the value of the clipping about which there is a justified complaint will be credited to the customer and offset against the subsequent invoice. If media references are missed and reported by the client, follow-up research will be carried out. If this research is unsuccessful, the resulting research costs shall be borne by the customer. Further warranty claims are excluded. There is a claim for subsequent delivery within four weeks after the publication date for clippings reported by the customer which have not yet been delivered.

1.2. Media resonance analysis & press summaries

The customer must report a faulty media resonance analysis or press summary in writing within 14 days of receipt. In the event of a justified complaint (more than 5% faulty coding with media resonance analyses), the contractor has the right to rectify the defect within a period of ten days after receipt of the contested media resonance analysis. If the correction in the form of subsequent rectification fails, the customer can demand a reasonable reduction in the remuneration. Further warranty claims are excluded. The content and the degree of the textual and graphic interpretation as well as the textual formulation are not part of the warranty. Due to the impossibility of completely excluding human error in the media research and the coding of a media resonance analysis or a press summary, no warranty can be given for the completeness of the media resonance analyses or the press summaries.

1.3. ARGUS Portal

The ARGUS Portal shall be provided by the contractor in 7/24/365 operation. In the event of failures, the contractor shall strive for fast recovery. The contractor shall aim for 99% availability of the Portal in relation to the calendar year. Nevertheless, there is no legal claim on the part of the customer to uninterrupted access. The customer is responsible for a plausibility check for the use of the data provided in the ARGUS Portal. In the event of unusual deviations, the contractor must be requested to confirm this before using this data. Metadata for active customers is kept for a maximum of two full calendar years, unless otherwise expressly agreed.

1.4. The contractor assumes no responsibility for the content of the media provided.

1.5. The contractor accepts no liability for the unrestricted accessibility of the article in the provided links. Additionally required rights for this purpose shall be requested by the customer itself. If it is not possible for the contractor to deliver articles in fact or due to legal restrictions by third parties, the customer is not entitled to demand delivery.

1.6. The contractor is liable only in cases in which a quality is missing, the existence of which was guaranteed and in case of intentional and grossly negligent behaviour. In cases of simple negligence, the contractor is liable only for injury to life, limb and health or if material contractual obligations have been violated. In these cases, however, the contractor is not liable for indirect damage, such as extra effort or lost profit. The limitations of liability also apply to legal representatives and vicarious agents of the contractor.

1.7. If the occurrence of force majeure leads to an interruption of services, the parties shall be released from their obligations under this contract for the period of interruption of the work. If, in the event of force majeure, the provision of services is permanently prevented in the long term,the parties are entitled to terminate the contract. Claims for damages are excluded. Force majeure includes in particular the following events: war, orders from higher authorities, sabotage, strikes and lockouts, natural disasters, geological changes and impacts.

1.8. Each contracting party shall be required to provide the other party notice with full details as soon as a case of force majeure occurs. In addition, the parties have to advise on appropriate measures to be taken.

1.9. Data transmitted by the contractor to the customer will be scanned for viruses and other malware. Nevertheless, no guarantee can be assumed for freedom from viruses and malicious programmes. The customer is therefore obliged to carry out its own inspection beforeaccepting the data.

1.10. Non-essential data losses occurring due to OCR conversion are not a defect.

2. Limitation period

Claims against the contractor become statute-barred within one year from the time the claim arises. If the contractor is liable due to intent, gross negligence or fraudulent concealment of a known defect, the statutory provisions shall apply.

 

 

VI. JURISDICTION | APPLICABLE LAW | CHANGE OF GTC | MISCELLANEOUS

 

1. The law of the Federal Republic of Germany applies. The provisions of the UN Sales Convention are not applicable.

2. The place of performance is the registered office of the commercial branch of the contractor. The place of jurisdiction is Berlin.

3. Changes to these General Terms and Conditions will be announced to the customer in writing. If the customer communicates with the contractor by electronic means, the changes can also be transmitted in this way if the type of transmission allows the customer to save or print the changes in a readable form. They shall be deemed approved if the customer does not object in writing or by the agreed electronic means. The contractor shall draw particular attention to this consequence for the customer in the notification. The customer must send the objection to the contractor within six weeks after notification of the changes.

Last updated: 10/2019