1. Scope of applications; no use by consumer
1.1 These General Terms and Conditions (“GTC”) apply for the conclusion of contracts on the use of the Products (“Licence Agreements”) between PressMatrix and PressMatrix’s customer (“Customer”).
1.2 Use of the Customer’s General Terms and Conditions is excluded. Any differing, contradictory or supplementary General Terms and Conditions from the Customer only form part of the agreement if and insofar as PressMatrix has expressly agreed to their applicability in writing.
1.3 PressMatrix only provides the Products under these GTC to Customers who are not consumers within the meaning of Section 13 of the German Civil Code (BGB). Use of the Products is thus not permitted if it cannot be attributed either to the Customer’s commercial or self-employed professional activity.
2. Functionality of the products
2.1 Via the Platform, the Customer has the opportunity to convert, format and assemble its digital media content (“Media Content”) for use on tablet PCs, smartphones or other mobile end devices (together: “End Devices”).
2.2 Via the KioskApp, it is possible for the Customer to distribute the Media Content edited by the Customer as an individual compilation (“Release”), which is a part of a long-term series (“Publication”) in digital form to end customers. With a separate agreement, the KioskApp can be extended with a browser client which makes it possible for the end customer to access the Publication by Internet browser; the provisions of the GTC on the KioskApp then apply accordingly for this browser client. The Customer has the right to publish the number of Releases per Publication given in the order form per year of the Agreement (“Release Quota”). At the end of the respective year of the Agreement, the unused Release Quota expires. Releases exceeding the Release Quota (“Additional Releases”) are to be paid separately.
2.4 PressMatrix provides the Products on PressMatrix’s servers for use at the entry point of PressMatrix’s computer centre (“Service Transfer Point”). In order to use the Products, it is necessary that the Customer or, for the KioskApp, also the particular final customer, has its own access to the Internet and accesses the Products at the Service Transfer Point via this access.
2.5 The Platform and the KioskApp are each available 99% of the time. The availability refers, with regard to one year of the Agreement, to the proportion of the time in which it was possible for the Customer to use the Platform or the KioskApp with an existing Internet connection (plus the time period in which access was not possible due to planned maintenance work or disruptions outside of PressMatrix’s control), in proportion to the length of the total year of the Agreement. If the Customer expects, e.g. due to a promotional action planned, end customers to access the KioskApp at levels substantially higher than the previous average values and/or which mean an increased use of the bandwidth provided by PressMatrix (jointly “Traffic Peak”), the Customer shall inform PressMatrix at the latest five working days prior to the expected traffic peak so that PressMatrix can, if necessary, adjust the available bandwidth accordingly.
2.6 The Product’s additional functionalities and system requirements come from the service description applicable on the date the order is placed.
3. Right of use for the products
3.1 PressMatrix grants the Customer the non-exclusive, non-transferable right with no geographical restriction but limited in time, to use the Products exclusively to fulfil the purpose of the particular Licence Agreement. The right of use expires at the end of the contractual term.
3.2 The Customer is not entitled to (i) rent, lease, confer, reproduce, resell, or otherwise distribute or pass on the Platform or access to the Platform, including via the Internet or a downstream public or private data network; (ii) use the Products to develop other services; (iii) activate and use functionalities of the Products for which it has not been granted any rights of use; (iv) transfer the rights of use to the Products to third parties, or grant third parties access to the Products; end customers accessing the Media Content via the Product are not deemed to be a grant of use in the sense of this provision; (v) change, translate, reproduce, decompile the Product’s source code or analyse its functions, except as far as legally compulsory according to Section 69d or Section 69e of the German Copyright Act (UrhG); and (vi) remove, conceal or change legal notices, particularly for
PressMatrix’s industrial property rights.
4.1 The agreed ongoing payments for the limited use of the Products and/or for ongoing additional services are due for payment annually in advance, at the latest by the fifth working day of the agreed settlement period.
4.2 All other payments, particularly one-off payments, payments calculated according to expenditure and per Release, and the commission are due for payment by the Customer at the latest ten days after the invoice date.
4.3 PressMatrix invoices the commission to be paid by the Customer quarterly. “Gross sales price” is the sales price charged by the Customer to its end customers per individual Release of the respective Publication (“Individual Release”) or for the regular purchase of multiple Releases of the respective Publication (“Subscription”). No zero-value invoices are created.
4.4 Invoicing takes place by email.
4.5 All agreed payments are net amounts, and are understood to be exclusive of VAT at the rate regulated by law.
4.6 It is only permissible for the Customer to set-off counterclaims or to withhold payments due to such claims if the counterclaims are undisputed or established by law.
5. The customer’s duties of Co-Operation; Licence;
5.1 The Customer undertakes to ensure, by taking suitable measures, that the hardware and software it uses, including workplace computers, routers, means of data communication etc. (“IT Systems”) are free from any viruses, worms, Trojan horses, etc. (“Malware”). Suitable measures particularly includes the Customer using the respective current version of the operating system software and a virus scanner on its IT Systems, and regularly checking the IT systems used and removing these. The Customer guarantees that all data it stores on PressMatrix’s servers in using the Products are free from any Malware.
5.2 The Customer grants PressMatrix a non-exclusive right, limited in time and geography, to reproduce, edit, transfer and if applicable otherwise use the Media Content insofar as this is necessary to fulfil PressMatrix’s contractual obligations.
5.3 The Customer further grants PressMatrix the non-exclusive right, unlimited by geography but limited in time to the contractual term and the departure period under clause 9, to display the title pages of the Releases offered by the Customer via the Products on PressMatrix’s offer, to make them publicly accessible and to use them in print products for the purposes of its own advertising, that is, particularly to reproduce and edit them to the extent necessary, make them publicly accessible [and distribute them] for these purposes. At the same time, the Customer permits PressMatrix to name the Customer as a reference customer.
5.4 The Customer warrants that (i) it is the owner of all rights to the Media Content necessary to grant PressMatrix the aforementioned rights; (ii) the Customer can freely dispose of these, and (iii) the Media Content is free from third-party rights.
5.5 The Customer warrants that in using the Products it will not store on
PressMatrix’s servers, and/or have stored by PressMatrix any illegal content or content breaching laws or official requirements, particularly which glorifies violence, is unconstitutional, or is pornographic within the meaning of Section 4 (1) no. 10 of the German Interstate Treaty on the Protection of Minors in the Media (JMStV), and other impermissible offers within the meaning of Section 4 (1), (2) of JMStV.
5.6 Notwithstanding other rights, the Customer indemnifies PressMatrix in the event of a breach of the above warranties against any liability to third parties, including reasonable costs of legal defence. PressMatrix is further entitled to (i) delete data which does not comply with the provisions of Clause 5.1, and (ii) delete content which does not comply with the provisions of Clauses 5.2, 5.4, or 5.5, if the Customer does not delete this despite being requested to do so.
5.7 The Customer is aware that PressMatrix does not create separate back-up
copies of the Media Content, and deletes this in accordance with Clause 5.6. and after expiry of the contractual term under Clause 9.5. It is the Customer’s responsibility to create back-up copies of the media content independently.
6.1 Section 536 et seq. of the German Civil Code (BGB) fundamentally applies for defects in the Products. Strict liability is excluded for initial defects. PressMatrix’s fault-based liability remains unchanged. In determining whether PressMatrix is at fault, the Customer acknowledges that software cannot actually be created fully free of errors.
6.2 Defects are remedied at PressMatrix’s choice either by repair or replacement delivery.
6.3 The Customer is only permitted to terminate in accordance with Section 543 (2) Sentence 1 no. 1 of the German Civil Code (BGB) due to the contractual use not being granted when PressMatrix has been given sufficient opportunity to remedy the defects and has failed to do so.
6.4 PressMatrix does not accept any guarantee whatsoever for the Customer’s Internet access and/or that of the end customer, particularly not for the availability and dimension of the Internet access. The Customer is responsible for its Internet access to the Service Transfer Point.
7.1 PressMatrix is liable without limit for losses due to injury to life, limb or health based on a breach of duty by PressMatrix or a statutory representative or vicarious agent of PressMatrix, and for losses caused by the absence of a condition guaranteed by PressMatrix or in the event of fraudulent behaviour from PressMatrix.
7.2 PressMatrix is liable without limit for losses which have been caused by
PressMatrix or a statutory representative or vicarious agent of PressMatrix by intent or negligence.
7.3 In the event of a breach of an essential contractual obligation caused by simple negligence, PressMatrix’s liability, other than in the circumstances in Clause 7.1 or Clause 7.4, is limited in amount to the foreseeable losses typical for the contract.
Essential contractual obligations refer in abstract terms to obligations that must be met in order to ensure the proper performance of an agreement and that the contracting parties trust in.
7.4 Liability under the German Product Liability Act (ProdHaftG) is unaffected.
7.5 In all other cases PressMatrix’s liability is excluded.
7.6 The limitation period for the Customer’s compensation claims against
PressMatrix is one year, other than in the circumstances in Clauses 7.1, 7.2, or 7.4.
8. Data protection
Analysis tools are integrated into the KioskApp to provide reporting functions. Insofar as PressMatrix collects and processes personal data on the Customer’s end customers via the KioskApp, inter alia via the analysis tools, this is exclusively done on the Customer’s behalf. In these circumstances the provisions of the contract data processing agreement concluded between PressMatrix and the Customer apply. The Customer is responsible to ensure use of the KioskApp vis-à-vis the end customers in compliance with data protection.
9. ACCESS Contractual term; Termination of access
9.1 The Customer is permitted use of the Products for the agreed contractual term. The contractual term begins on the agreed date for the start of the term, regardless of the date on which the Customer adapts the KioskApp in the sense of Clause 2.3 and presents it to the respective App Store and/or when there is permission from the App Store to publish the KioskApp adapted by the Customer.
9.2 Unless otherwise agreed, the minimum term of the Agreement is two years. The Licence Agreement is always extended by another year once the minimum term of the Agreement has elapsed, unless it is terminated by one of the parties at the latest 3 months before expiry. Both parties’ right to terminate without notice for good cause is not affected by this.
9.3 PressMatrix particularly has the right to terminate without notice for good cause in the following circumstances: (i) the Customer becomes insolvent or over-indebted; (ii) an application is made to open an insolvency procedure over the Customer’s assets (where the provision in Section 112 of the German Insolvency Code (InsO) is unaffected) or (iii) the Customer is in default with payment of the agreed ongoing payment or a non-negligible part thereof for two consecutive months or, over a period extending more than 2 months, is in default with making the ongoing payment, amounting to the ongoing payment to be made for two months.
9.4 Termination must always take place in writing.
9.5 Once the contractual term has expired, it is no longer possible for the Customer to access the Platform and the Media Content – subject to an extension of the Agreement or conclusion of a new Licence Agreement – and PressMatrix deletes the Releases from the KioskApp, so that end customers can no longer download Releases after expiry of the contractual term. If a departure period is agreed, the Customer’s end customers can still download Releases published during the contractual term, for up to three months after the end of the contractual term, via the KioskApp. The Media Content stored by the Customer on the Platform and all Releases in the App Stores can then no longer be opened and/or edited, and are finally deleted by PressMatrix once three months have elapsed from the end of the contractual term.
10.1 The Parties are obligated to not make confidential information accessible to third parties up until two years have elapsed from the end of the contractual term, and not to use it for other purposes not serving the purpose of the collaboration. The following is considered to be confidential: (i) all information regarding the payment agreed between the parties, (ii) all information regarding the contractual term, (ii) all technical information and know-how made accessible to the Customer, and (iv) other information which has been marked as confidential by one of the parties.
10.2 The duty of confidentiality does not refer to information which, without a party breaching confidentiality, became publicly known or known to the other party, or which is already known, or which is to be made accessible to third parties due to legal, judicial, or administrative order.
11. Amendments to the GTC
11.1 PressMatrix reserves the right to amend the services offered and the GTC, insofar as the particular amendment is necessary to represent changes which were not foreseeable when the particular order was issued, and non-compliance with it would damage the contractual balance between PressMatrix and the Customer, particular insofar as PressMatrix (i) is obligated to bring the services into compliance with the law applicable to them, particularly when the applicable legal position changes; and/or (ii) thus complies with a court decision or an administrative decision against PressMatrix, and/or (iii) must amend the Products due to mandatory technical requirements from the App Store operator.
11.2 At no point is PressMatrix’s fulfilment of the primary contractual obligations restricted by the service changes. In particular, the functionality of the Products is not changed.
11.3 In circumstances other than in Clause 11.1, PressMatrix notifies the Customer in advance of the changes to the GTC. Insofar as the Customer does not raise an objection to them applying within four weeks of receiving the notification, the amendments are deemed to be accepted with effect for the future. In the event of an ongoing contractual year, the amendments are first deemed to be accepted, notwithstanding the above sentence, from the start of the following contractual year, unless it is reasonable for them to come into force earlier, taking the Customer’s interests into consideration. If the Customer objects to the amendments, PressMatrix is entitled to terminate the contractual relationship. PressMatrix will refer to the effect of silence and the right to terminate in the notification.
11.4 Any amendment to the contractual object and the primary contractual obligations which would lead to a change in the structure of the Agreement as a whole is excepted from the power to make amendments under Clause 11.3. In these circumstances, PressMatrix will notify the Customer of the intended amendments, and offer to continue the contractual relationship on the amended terms.
12.1 The agreements concluded between the parties, including these GTC, are subject to the substantive law of the Federal Republic of Germany, excluding UN sales law and private international law.
12.2 The exclusive place of jurisdiction is PressMatrix’s registered office.
12.3 Should one or more provisions of these GTC be or become invalid, this does not affect the validity of the remaining provisions.
As of April 2021