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General Terms and Conditions

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These General Terms and Conditions of Walter de Gruyter GmbH (hereinafter “De Gruyter”)
Represented by de Gruyter Verlagsbeteiligungs GmbH
Managing Director: Dr. Sven Fund, Dr. Anke Beck, Carsten Buhr
Genthiner Str. 13 10785 Berlin
Tel. +49 - (0)30-26005-0
Fax: +49 - (0)30-26005-251
e-mail: info@degruyter.de

and of

Walter de Gruyter, Inc.
Represented by Michiel Klein Swormink
121 High Street, Third Floor
Boston, MA 02110
USA
Phone: +1 857-284-7073
Fax: +1 857-284-7358
Email: USinfo@degruyter.com

regulate the contractual relationship with natural persons and separate legal entities that purchase products from De Gruyter via the website “De Gruyter Online” (“Customer”).

§ 1 Scope

  1. In the business relationship with the Customer, our General Terms and Conditions apply exclusively in the version published online at the time the Customer makes the order. Any differing or additional general terms and conditions of the Customer shall not apply and will not be part of the contract unless De Gruyter has expressly agreed in writing that they shall apply. This applies even if De Gruyter makes deliveries without reservation in the knowledge of differing or supplemental general terms and conditions of the Customer.
  2. By placing a purchase order and unless regulated otherwise in a separate license agreement, the Customer accepts and agrees to the exclusive validity of these General Terms and Conditions.
  3. Customers may download our General Terms and Conditions onto their computers, store them in reproducible form or print them.
  4. Our General Terms and Conditions differentiate in parts depending on whether the Customer is a consumer within the meaning of Section 13 of the German Civil Code (BGB). A consumer means every natural person who purchases products for a purpose that is outside his trade, business or profession.

§ 2 Creation of a Contract

  1. Neither the online presentation of our product range nor our offers themselves represent a binding contractual offer, unless otherwise expressly agreed. By sending a purchase order to us, the Customer submits a binding offer to conclude a purchase contract. We will store these orders electronically. The Customer will receive an e-mail that confirms the receipt of the order and quotes its details (“Order Confirmation”). The Order Confirmation shall not be deemed an acceptance of the order, but shall only inform the Customer that his order has been received. We will accept this order either by sending the Customer a second e-mail or a postal communication (“Order Acceptance Notice”) within 3 (three) working days or by the delivery of the ordered goods to the recipient/s designated in the order within 7 (seven) working days. In the case of orders with a product value of € 500 (in words: five hundred euro), the period for acceptance will be 7 working days (declaration) and 10 working days (delivery). These time periods apply exclusively to deliveries within Germany. They are not applicable to goods that are produced, at the Customer’s request, using Print on Demand services, or to specially marked offers (e.g. e-dition, Custom Book). The acceptance period commences on the day after the order was sent. If online information on the product range proves to be incorrect or minimum order quantities must be attained, we will send the Customer a counteroffer which he is free to accept or reject. If we do not accept a Customer‘s offer, we will inform him thereof.
  2. The contract is concluded either upon the Consumer’s receipt of our Order Acceptance Notice or, if no such Order Acceptance Notice is dispatched, upon delivery of the goods. The receipt and processing of orders, complaints and debtor management shall be handled until further notification by Rhenus Medien Logistik GmbH& Co. KG, Justus-von-Liegig-Str. 1, 86899 Landsberg.
  3. De Gruyter reserves the right to refuse orders not yet accepted without reason. Oral orders and change requests to orders already submitted will only become effective if confirmed by De Gruyter in writing.
  4. The conclusion of the contract is subject to the proviso of prompt delivery of our own products by our suppliers; this proviso applies only in the event that we have placed a congruent covering order with the supplier and are not responsible for any wrong deliveries or non-deliveries that occur.
  5. If the ordered goods prove to be unavailable, we reserve the right to rescind the contract. If an ordered work has not yet been published, we will backorder it if possible. In the case of works that are out of stock, the Customer may cancel his order or have it backordered in the event that it is reprinted or appears in a new edition. In any case, we will, without delay, inform the Customer of the unavailability and refund any payments he has already made.
  6. If an order exceeds the customary commercial quantity, we reserve the right to limit the order to the customary commercial quantity provided that this reasonable for the other contractual party taking into account De Gruyter’s interests.
  7. Subscription contracts for journals shall be entered into for a fixed term of 12 months. In case the initial delivery takes place during a running calendar year, the subscription contract becomes retroactively effective as of the beginning of the respective calendar year of the initial delivery. Each contractual party has the right to terminate the subscription contract after the fixed term with a notice period of six weeks towards the end of a calendar year. The subscription contract is prolonged for a further year, if it is not terminated with a notice period of six weeks towards the end of the respective calendar year by a contracting party. Excepted herefrom are subscription contracts for the journal "JURA". Such subscription contracts shall be entered into for a fixed term of 12 months even if the initial delivery takes place throughout the running calendar year and such contracts may be terminated with a notice period of six weeks towards the end of a contractual year. If no termination towards the end of a contractual year is declared the subscription contract is prolonged for another 12 months.
  8. Trial subscriptions for journals shall be valid for the time stated in each case. Unless the Customer has stated to De Gruyter 14 days before the expiry of the trial subscription in writing or by email that he does not intend to continue the contractual relationship, the contract shall be deemed to be renewed as a paid subscription contract. The starting date for the regular subscription contract shall then be the first day following the expiry of the trial subscription.

§3. Right of revocation

The following right of revocation only applies to customers who are consumers within the meaning of Section 13 of the German Civil Code (BGB):

  1. Notification regarding revocation: You may revoke the contractual agreement in text form (e.g. letter, fax, e-mail) without giving reason within 14 days after receipt of the Order Acceptance Notice or, if the Order Acceptance Notice has not been sent to you, after receipt of the goods ordered or – if the item(s) has/have been delivered before the expiry of this period. The period commences upon receipt of this legal information in written form, but not before the recipient has received the item(s) (in case of recurring delivery of the same type of items, not before receipt of the first partial delivery) and also not before the fulfillment of our information obligations according to Article 246 § 2 in connection with § 1 paragraphs 1 and 2 EGBGB (Introductory Law of the German Civil Code) as well as our obligations according to § 312e paragraph 1 subparagraph 1 BGB (German Civil Code) in connection with Article 246 § 3 EGBGB.
    The timely sending of the revocation notice or of the items shall be sufficient for observing the revocation deadline.
    The revocation shall, unless otherwise expressly agreed, be sent to:
    Rhenus Medien Logistik GmbH & Co. KG
    Justus-von-Liebig-Str. 1
    86899 Landsberg
    Fax: + 49 (0) 8191-97000-594
    Tel: + 49 (0) 8191-97000-214
    e-mail: degruyter@de.rhenus.com
  2. In the case of ordering software, the right of revocation shall not apply if the delivered data media have been unsealed by the customer as well as in the case of downloads.
  3. The consumer, notwithstanding Section 357 Subsection 1 of the German Civil Code (BGB) is obliged to make compensation for the value of the service performance under the provisions on statutory revocation of an agreement if he expressly agreed to De Gruyter beginning to perform the service before the end of the revocation period. The right of revocation terminates earlier if, at the Customer’s express request, De Gruyter has fully provided their services or if the Customer/Licensee themselves have brought this about, before the Customer has excercised its right of revocation. This is particularly the case if the Customer/ Licensee or an Approved User have used their access data to gain access to the website and call down contents from it.
  4. Effects of Revocation
    1. In the case of a valid revocation, any services or products received by either side are to be returned and any accrued financial advantage (such as interest) shall be turned over to the other party. Where the right of revocation is exercised the Customer is obliged to return the goods.
    2. If the Customer cannot reimburse services or products received wholly, partially or only in a deteriorated state, the Customer shall pay compensation for any lost value. Concerning the relinquishment of goods this does not apply if the deterioration of the merchandise is related solely to verification, in the same way it would have been possible in a store.
    3. For the rest, the Customer may avoid any obligation to provide compensation for any deterioration of the product caused by the intended use by not using the product as its own property and by refraining from any actions that might diminish its value. Products which can be mailed as a package are to be sent at the Customer’s own risk. The Customer shall bear the cost of return shipment if the delivered items match the ordered items and if the price of the merchandise to be returned does not exceed 40 euros or if, in the case of a higher price, the Customer has not yet provided complete or a contractually agreed on partial payment at the time of the revocation. Otherwise the return shipment is free of charge for the Customer. Merchandise that cannot be sent as a package will be picked up at the Customer’s residence. Obligations to refund payments must be met within 30 days. The respective period of time begins for the Customer with the sending of the notice of revocation or the merchandise itself, for De Gruyter, it begins with receipt of the revocation notice or the returned merchandise.
    The customer may browse through books to inspect them. In the case of usage which exceeds an inspection De Gruyter reserve the right of charging the customer any decrease in value caused by usage. You will find more details on the delivery note.

§ 4 Delivery and Shipment Costs

  1. For each order via our website delivered in physical form we charge the following:
    Within Germany: <1,5 kg EUR 3,00 >1,5 kg EUR 5,20
    Abroad, except for North America and Australia, Far East: <1,5 kg EUR 13,00 > 1,5 kg EUR 17,00
    North America: <1,5 kg EUR 20,00 >1,5 kg EUR 30,00
    Australia, Far East: <1,5 kg EUR 30,00 >1,5 kg EUR 45,00
    Canada*: US $ 12.00
    Mexico*: US $ 15.00
    Rest of the World: Regular shipping EUR 8.00 / Airmail EUR 20.00 per item
    *Express shipping to Canada and Mexico is not available for web orders. Please call our warehouse at 703-661-1589 or toll-free (for calls from North America only) 800-208-8144 for express orders to Canada or Mexico.
    The flat rates for shipping are valid for deliveries up to 20kg each.
    For Customers who reside in the US, Canada, or Mexico the billing currency is US$. Delivery to other as the above-mentioned countries is carried out on request. We will inform the Customer about the costs that incur in this case. In case of delivery to other countries than the Federeal Republic of Germany the import charges, taxes or customs duties that exceed the delivery costs shall be borne by the Customer in addition to the delivery costs.
  2. We reserve the right to make partial deliveries where this is reasonable for the Customer. We will bear any increased costs resulting from the partial deliveries. Delivery deadlines are only binding if they have been agreed with us in writing. Where a work that has been ordered has not yet been published, the order (where possible) will be booked.
  3. If the Customer is not a consumer within the meaning of Section 13 of the German Civil Code (BGB), the risk of the destruction, loss or deterioration of the goods, as well as the price risk, passes to the Customer upon delivery of the goods to the person designated to ship the goods. The same applies to the risk of delayed delivery.
  4. At the request and expense of the Customer we shall insure deliveries against customary transportation risks. We draw the Customer’s attention to the fact that to make any claims against the carrier or its insurer time limits may have to be adhered to. Risk additionally passes to the Customer if the dispatch of the goods, or the delivery or collection thereof is delayed for reasons for which the Customer is responsible or the Customer is in default with acceptance for other reasons.
  5. The Customer is obliged to comply with the statutory and contractual provisions (Sammelrevers) relating to fixed book prices. If the Customer is a trader, he is obliged in particular to adhere to the stipulated price for sale to end-customers. In sales between booksellers the purchaser shall be bound in the same way.

§ 5 Price and Payment Terms and Conditions

  1. All product prices are including VAT. The total price of our products is the sum of the price of the product plus the shipping costs. We accept only the forms of payment indicated in the context of the ordering procedure. Unless advance payment or payment by credit card is agreed, payment must be made without deducting a cash discount within the payment period indicated on the invoice by transfer to the bank account designated in the invoice. Payments made from foreign countries must be effected free of banking charges to Germany. The fees for a cross-border transfer shall be borne by the Customer. In the case of deliveries to foreign countries, the Customer must bear any additional taxes, customs duties or import charges.
  2. Journal subscriptions shall be billed in advance for 12 months in each case beginning with the month of the first purchase or for the calendar year, regardless of the frequency in each case.
  3. If the Customer is in default with payment De Gruyter can demand late interest at 5 per cent above the base rate pursuant to Section 247 German Civil Code (BGB). If the Customer is a business customer late interest is 8% above the base rate. After the second warning notice dunning charges shall be levied at a graduated rate in addition to the invoiced amount and late interest. The right to claim further loss or assert other rights shall remain unaffected. The Customer remains free to prove that no loss at all or only a much smaller loss has arisen.
  4. If the Customer is in default of payment, the statutory provisions will apply.
  5. The Customer may only set off against counterclaims which have been bindingly determined by a court of law, are undisputed or have been acknowledged by us. The Customer may only assert a right of retention on the basis of counterclaims which are based on the same contractual relationship and are undisputed, have been bindingly determined by a court of law or are ready for decision by a court.

§ 6 Warranty

  1. We assume warranty for defects in our products by either remedying the defect or delivering a defect-free product („subsequent fulfillment“). We must be provided with reasonable opportunity and time to perform the subsequent fulfillment before any other defect claims are asserted. If the subsequent fulfillment is unsuccessful, the Customer may, at his option, either reduce the purchase price or rescind the contract.
  2. No defect claims will exist if the deviation from the agreed quality is only insignificant or the contractual or customary use of the product is only insignificantly hampered.
  3. Obvious defects must be notified to us within two weeks of receiving the goods, otherwise no warranty claims may be asserted. Where objections are made, the date, type of delivery, content and number of the delivery must be stated. For compliance with this two-week period, the timely dispatch of the claim will suffice, the burden of proof for which will be borne by the Customer. For merchants, the provisions of § 377 of the German Commercial Code (HGB) will apply.
  4. The Customer‘s defect claims will be statute barred – subject to the provision in the following sentence - one year after the delivery of the product. Damages claims or claims for reimbursement of expenditures asserted by the Customer due to a defect will remain unaffected by the above provisions and become statute barred in accordance with the statutory limitation periods.
  5. The above restrictions of the duty to assume warranty do not apply for the purchase of movable items by consumers within the meaning of Section 13 of the German Civil Code (BGB). The restrictions also do not apply in cases in which we have assumed a guarantee for the quality of the goods or have fraudulently concealed defects. In these cases the statutory provisions will apply.

§ 7 Liability

  1. The Customer‘s claims for damages and reimbursement of expenditures (hereinafter: „damages claims“) - regardless of their legal basis, in particular due to a breach of duties arising from the contractual relationship on our part, by our legal representatives, employees or vicarious agents or due to tort - are excluded.
  2. The above exclusion of liability does not apply to liability arising from the breach of material contractual duties („cardinal duties“). If the breach of the cardinal duties was merely due to slight negligence, however, the amount of our liability will be limited to the typical foreseeable damage.
  3. The above limitations of liability pursuant to paras. 1 and 2 will not apply to cases of liability pursuant to the German Product Liability Act, of intent or gross negligence, liability for damage resulting from injury to life, limb or health, the assumption of a guarantee by us .
  4. To the extent that our liability is restricted or excluded by the above provisions, this will also apply to our legal representatives, employees and vicarious agents.
  5. The above provisions are not linked to a change in the burden of proof to the detriment of the Customer.
  6. Any statutory liability privileges to our advantage, e.g. pursuant to §§ 7-10 of the German Telemedia Act (TMG) remain unaffected.
  7. The Customer‘s damages claims will be statute barred upon expiration of the statutory warranty periods, which commence as provided by statute.
  8. De Gruyter will exercise the normal care and diligence customary for its field of activity to compile, process and present the contents made available via the website in line with the current state of knowledge. Despite due care being exercised in collecting, processing, checking and correcting contents, errors cannot be excluded. As far as is compatible with product liability legislation, in particular with the (German) Product Liability Law, De Gruyter therefore assumes no guarantee or liability for the substantive accuracy or completeness of these contents and for damage incurred by the Customer/ Licensee or the Approved Users as a direct or indirect result of using the contents (in whole or in part) – except in the case of intent.
  9. De Gruyter is not responsible for technical problems (e.g. line disruptions, power cuts and other problems in the Internet and telecommunications infrastructures) or for other circumstances (e.g. war, strike, floods, restrictions imposed by the state) beyond De Gruyter’s control. Insofar as the Licensee is responsible for defects in the subject of the Licence (e.g. errors in content, sense or typography when sending copies) he releases De Gruyter from all guarantee and compensation claims which third parties – especially users – might bring against De Gruyter.
  10. Remissions
    If the Customer is a trader who resides in Germany and who is subject to the statutory and contractual rules relating to fixed book prices, he is authorised to return goods subject to the following rules: in the case of returns our consent or the consent of Rhenus Medien Logistik GmbH & Co. KG on our behalf must be obtained in advance. The purchase details must be stated along with the returns request. We reserve the right to reject unapproved returns. Returns must be sent carriage paid. The following may not be returned a) titles the fixed retail price of which has been suspended for more than 6 weeks by means of notification in the Börsenblatt [online magazine of the German book trade] and b) titles 6 weeks after a new edition has been published and c) goods which have been invoiced more than 18 months before the return.
    Approved and undamaged returns are credited in full to the Customer based on the original purchase price. The Customer shall be given a 25% credit on the retail price for copies which arrive damaged unless otherwise specifically agreed. In the case of damaged copies which in our reasonable judgment cannot be resold, we reserve the right not to give a credit. Each calendar year we accept returns up to a total value corresponding to 5% of the annual turnover of the respective trader. Electronic products can only be returned in the original packaging (sealed).
    Returns must, unless otherwise expressly agreed, be sent to: Rhenus Medien Logistik GmbH & Co. KG, Justus-von-Liebig-Str. 1, 86899 Landsberg.

§ 8 Reservation of Title

  1. In contracts with consumers within the meaning of Section 13 of the German Civil Code, we reserve title to the delivered goods until the purchase price for the respective products has been received in full. As long as the reservation of title remains in force, the Customer will be obligated to notify us of any court seizure of, damage to or loss of the goods without delay.
  2. In the case of contracts with business customers, this reservation of title will apply until all payments owed in the business relationship with the business customer have been received. The customer is authorised to resell the reserved goods in the ordinary course of business. The Customer assigns to us in full extent all claims arising from the resale of the reserved goods to a third party (including all account balance claims). The Customer is authorised to collect the claims assigned. The authorisation to collect such claims may be revoked if the Customer does not properly meet its payment obligations. Insofar as the realisable value of the security rights to which De Gruyter is entitled exceeds the amount of all secured claims by more than 10%, De Gruyter shall release a corresponding part of the secured rights at the customer's request. For the duration of the retention of title, the Customer may not pledge the reserved goods or use them as security. In the case of attachments, confiscations or other interference by third parties the Customer must file an objection referring to our ownership and inform us immediately.

§ 9 Final Provisions

  1. These Terms and Conditions are governed by the substantive law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
  2. If the Customer is a merchant, separate legal entity under public law or a separate fund under public law, the sole legal venue for all disputes arising under these General Terms and Conditions is Berlin. The same applies if the Customer does not have a general legal venue in Germany.
  3. Should individual provisions of the contract between us and the Customer, including these General Terms and Conditions, be or become wholly or partially invalid, this will not affect the validity of the remaining provisions.

 

Berlin, January 2013