General Licensing Conditions
Walter de Gruyter GmbH, Genthiner Str. 13, 10785 Berlin ("De Gruyter") provides via its website De Gruyter online www.degruyter.de ("Website") online access to its proprietary databases, eJournal contents, articles and eBooks (together "Contents"). These General Licensing Conditions apply to all contractual arrangements between De Gruyter and its customers ("Licensees") regarding the use of the Contents unless regulated by an individual agreement ("License Agreement"). They apply accordingly for the purchase of CD ROMs and DVDs.
1 Scope of Application
The General Licensing Conditions regulate the access to and use of Contents for which the Licensee acquires rights of use for one site ("Einzelstandortlizenz" or "single-site license"). Other arrangements (e.g. "multi-site licenses") require a separate agreement with De Gruyter (by e-mail to: firstname.lastname@example.org).
By entering into an agreement regarding the use of the Contents or upon purchasing a CD-ROM or DVD the Licensee agrees to the exclusive validity of these General Licensing Conditions. Any differing or additional licensing conditions of the Licensee shall not apply and will not become part of the agreement unless expressly agreed so in writing. This applies even if De Gruyter allows the use of the Contents without reservation in the knowledge of differing or supplemental licensing conditions of the Licensee.
De Gruyter may on occasion modify these General Licensing Conditions. The Licensee will be informed of such modifications in writing or by e-mail or by the posting of a notice on the platform. The modifications shall be deemed accepted if the Licensee or the Approved Users (Sect. 2.2.) continue to access the Contents after being notified of the modifications. De Gruyter will draw the Licensee's attention to this consequence when giving notification of the modification.
If the Licensee is a consumer within the meaning of Section 13 of the German Civil Code (BGB), De Gruyter will set a reasonable deadline for the consumer to declare his explicit acceptance.
2 Rights of Use
For the period of the Licence, De Gruyter grants the Licensee the non-exclusive, non-transferable right which may not be sub-let to access the Contents via the Website, to use the Website for this purpose and to allow the Approved Users such access and use in accordance with these General Licensing Conditions. Access and use have to be via an independent network or a virtual network via the Internet which only allows access to the Approved Users who are checked and supervised by the Licensee (secure network).
Approved Users are natural persons who maintain an employment relationship or an academic training relationship or an apprenticeship with the Licensee or who, on the grounds of any other contractual relationship with the Licensee, are authorised to use the Licensee's facilities and who have access to the Licensee's network because of this authorization. This includes in particular:
-current members of the Licensee's teaching staff,
-library employees and other persons employed by the Licensee,
-persons currently registered as students at an institution of the Licensee's,
-visitors to the library (Walk-in users)
Where a single-site license is acquired, only the Licensee is entitled to use the Contents. De Gruyter is entitled to review the number of persons stated in the Order Form as well as compliance with these General License Conditions. The Licensee shall provide De Gruyter to a reasonable extent with the documents and information necessary for the review, and the licensee shall be reimbursed for the costs incurred in so doing.
3 Approved Access
The contracting parties agree that the Contents are copyright-protected in De Gruyter's favour. This applies both to the databases and the works in the databases and to the copyright-protected works contained therein and to any other protectable elements. The Licensee receives rights of use and access in accordance with these Licensing Conditions for the licensed products; these rights may only be enjoyed for the period of validity of the license. For this, use and access are only allowed to the extent expressly permitted by these Conditions.
Access rights only apply to IP addresses or user names/passwords registered with De Gruyter. Furthermore access rights can be obtained for additional authentication processes (e.g. Shibboleth) agreed upon by De Gruyter with the Licencee.
Approved Users are allowed to use the Contents via computer work-stations within the Licensee's physical premises or – if the Licensee allows this provision – through remote access via the Licensee's secure network. Walk-in library users are only granted access to the Contents via computer work-stations within the Licensee's physical premises. Beyond this, the Licensee is not permitted to reproduce the Contents or to make it available to the public.
Approved Users are allowed to access the Contents only for their own use or for purposes of research, to view them and search them and to make individual print-outs or electronic copies of individual articles or chapters which do not constitute more than a small proportion of the affected Contents..
The Licensee may generate temporary local copies of the Contents which are produced for a limited time as an integral and substantive part of a technological process (caching), the sole purpose of which is to allow Approved Users use in accordance with the contractual conditions and which do not possess any independent economic value.
The Licensee and the Approved Users may use appropriate parts of the Contents to produce printed teaching materials for use by the Approved Users within the Licensee's institutions; these materials are not permitted to be used for re-sale or any other commercial purpose.
The Licensee and the Approved Users are not permitted to use or exploit the Contents in whole or in part by sale to third parties, rent, lease, loan or any other means for commercial or trade purposes.
The Licensee is not permitted to be a commercial party to paid documentation services and to make the Contents available in whole or in part for this purpose. In exception to this, however, the Licensee is allowed to respond to a request by another library to generate a print-out of part of the Contents (e.g. a journal article or a book-chapter) and to despatch this via non-commercial inter-library loan services. This only applies to paper print-outs; electronic copies may not be made. The use of the "Ariel Interlibrary Loan Software" for the transmission of a small proportion of the Contents to a printer/fax of another library is allowed, a transmission to e-mail addresses is not permitted.
The Licensee and the Approved Users are not allowed to make parts of the Contents available in other networks outside the Licensee's secure network, for example in the Internet, in particular in the World Wide Web.
The Licensee and the Approved User are also prohibited from reproducing the Contents (in whole or in parts) on permanent data processing media and passing them on to third parties and/or from using the Contents (in whole or in parts) to develop systematic compilations or in a local retrieval system and/or from translating the Contents to other data formats and/or from saving the Contents permanently unless this is provided by a function that is made available by De Gruyter. The above prohibitions also apply to parts of the Contents and to the instigation of corresponding actions by third parties. Any mandatory rights of use of the Licensee existing under the statutory provisions shall remain unaffected.
The Licensee and the Approved Users are not permitted to deploy robots, spiders, crawlers or other automated download programs or other aids to search, index or download the Contents continuously and automatically (e.g. systematic download, deployment of retrieval software).
The Licensee and the Approved Users may not process, operate on or in any other way alter the Contents (in whole or in part) unless this is necessary for the use in accordance with these contractual conditions.
The Contents are only made available via the website. Archiving of the Contents (in whole or in parts) requires prior written approval from De Gruyter. Any contents thus made available are subject to these present conditions for access.
Within the scope of De Gruyter's current corporate principles, the Licensee is only on extend of the respective offering also granted access to the contents of previous volumes of an eJournal or what is known as a Yearbook published before the volume currently subscribed and which have not been actively ordered or received. However, this only applies if these previous volumes are available on the website and only to the latest 13 volumes or less. This access is provided on an ex gratia basis. If the current volume is no longer being subscribed to, the access to the previous volumes is also terminated.
De Gruyter reserves the right to withdraw individual products or parts of the Contents, in particular if De Gruyter no longer owns the requisite rights, or if there is reasonable cause to suspect that individual products or parts of the Contents offend the rights of third parties or are illegal in any other way.
The Licensee and the Approved Users are prohibited from removing, altering or suppressing Authors' names, copyright notices, references to registered marks (esp. brands and company names), logos, other references serving identification or relevant for copyright purposes, together with liability exclusions, legal reservations etc. Any distribution of the Contents allowed under these General Licensing Conditions requires an indication of source.
The Licensee must inform in due form the Approved Users of these General License Conditions and oblige the Approved Users in writing or on-line to observe them. Furthermore the Licensee is required to make all appropriate efforts to ensure that
• only Approved Users are granted access to the Contents;
• the Approved Users are appropriately informed of the importance of observing the copyright and other rights attached to the Contents;
• the General License Conditions are adhered to.
4 Availability, Maintenance, Technical Requirements, Security Measures
De Gruyter grants the Licensee access to the Contents via the Internet for the agreed duration of the licence. De Gruyter will make appropriate efforts to ensure that its servers maintain sufficient capacity and bandwidth to guarantee availability for the Licensee and the Approved Users at a level comparable to that of the availability of information services of a comparable type and size via the Internet. De Gruyter's responsibility for providing and transmitting data ends however at the point where De Gruyter's servers are linked to the Internet ("handover point").
Maintenance and servicing work can lead to temporary restrictions in the availability of the service. De Gruyter will carry out the required work as speedily and smoothly as possible.
The Licensee bears sole responsibility for their connection to the Internet and the maintenance of such connection and for the requisite hardware and software for communicating with De Gruyter. On request, De Gruyter will provide the Licensee with details of the minimum standards required or desirable. The Licensee has to provide adequate state-of-the-art protection from viruses and unauthorised access for their deployed systems. De Gruyter shall not be liable for virus damage which could have been prevented by corresponding technical measures.
When placing an order or registering, the Licensee is obliged to provide truthful, up-to-date and complete details. They have to keep their user data up to date. In addition, the Licensee is obliged to keep access data secret. In the event of loss of the access data or if there are grounds to suspect that third parties have made unauthorised use of these data, the Licensee is obliged to report this to De Gruyter without delay. The Licensee is liable for any misuse of their access data for which they are responsible. Provided no blame is attached to De Gruyter, De Gruyter is not liable for any damage caused to the Licensee by misuse or loss of their access data (especially IP address or user name/password).
The Licensee is obliged to take all appropriate and suitable technical and legal steps to prevent use in contravention of the agreement or in excess of the rights granted, misuse and other disruptions and to prevent any repetition of such incidents. The Licensee is in addition obliged to inform De Gruyter without delay and in detail of all such incidents and to furnish De Gruyter with all the data and documentation relevant to the analysis and removal of such incidents.
To establish whether illicit use or misuse has occurred, De Gruyter is entitled to monitor access to the Contents and use of the platform.
If De Gruyter receives knowledge of illicit use or misuse of the Licensee's access data, or if there are objective grounds for fearing such an illicit use or misuse, De Gruyter will inform the Licensee without delay and set a time-limit for cessation. On expiry of the time-limit, De Gruyter is entitled to block access (for the Licensee as a whole or for individual IP addresses) until the suspicion of illicit use or misuse has been removed. The same applies where there is knowledge or suspicion of abuse of access data of or by the Approved Users in the case of multiple user licences.
The Licensee is obliged to compensate De Gruyter for all damage caused by illicit or careless use by Approved Users or by third parties which gain unauthorised access to the Contents via the Licensee's network and which the Licensee could have prevented by fulfilling their obligations under sect. 4.5.
5 Payment, Price Adjustment
The Licensee's and the Approved Users' rights of use and access are granted on condition that payments due are met.
In the case of justified reasons that will be disclosed to the Licensee, in particular in the case of exceptional technical or economical changes affecting cost calculations, De Gruyter is entitled to adjust the prices for the Contents with future effect. Notification to the Licensee will be made in writing with the invoice or by e-mail. In the event of prices being increased, the Licensee has the right to terminate the agreement extraordinarily within four weeks after the receipt of the notification. The Licensee's notice can be made in writing (Walter de Gruyter, Genthiner Str. 13, 10785 Berlin) or by e-mail (email@example.com). The notice takes effect on the date of the price increase announced; the old price applies up to this point. The ordinary right to terminate the agreement remains unaffected by this.
The Licensee can only set off such counter-claims as have been established by the courts, are uncontested or have been recognised by De Gruyter
6 Disruption of Service, Guarantee
Disruptions to the availability of the website do not entitle the Licensee to terminate the agreement or claim compensation for damage or expense caused thereby if the disruptions are of a short temporary nature. Only if the disruptions exceed a tolerable extent to a considerable degree is the Licensee is entitled to give extraordinary notice to terminate the agreement under Art. 8.2. – after expiry of a reasonable time-limit for the disruption to be removed set by the Licensee in writing. In this case, Art. 7 applies for possible claims for compensation for damage or the reimbursement of expenses; all further rights are excluded.
The Licensee is obliged to report any substantive or legal defects to De Gruyter in writing without delay, to give an exact description of any such defect and to provide all information and documentation required to remedy the defect. In the event of such defects, the Licensee must first grant De Gruyter an appropriate time-period for fulfilling their obligations. The Licensee is not entitled to require that unsubstantial substantive or legal defects be remedied. Technical problems which are outside the sphere of influence of De Gruyter (such as functional disruptions to the public transmission lines) do not constitute a defect.
If the Licensee is not a consumer within the meaning of Section 13 of the German Civil Code, the period of limitation for substantive and legal defects – except in the case of intent - is one year from the beginning of the statutory period of limitation. For consumers, the statutory regulations governing limitation apply.
Representations in marketing materials, service descriptions etc. do not constitute any guarantee. A guarantee is only given after explicit written confirmation by De Gruyter.
The Licensee'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.
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.
The above limitations of liability pursuant to sect. 7.1 and 7.2 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 .
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.
The above provisions are not linked to a change in the burden of proof to the detriment of the Licensee.
Any statutory liability privileges to our advantage, e.g. pursuant to §§ 7-10 of the German Telemedia Act (TMG) remain unaffected. .
The Licensee's damages claims will be statute barred upon expiration of the statutory warranty periods, which commence as provided by statute.
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 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.
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 Contents (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.
8 Duration of Licence, Termination, Access after Termination of the Agreement
The license agreement is valid for the period of subscription agreed, starting from the Licensee's receipt of the access data. It is renewed for a further year unless either party gives six weeks' notice to terminate the agreement at the end of the relevant subscription period.
Subscription contracts for journals (eJournals) 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.
Trial subscriptions for eJournals shall only be valid for the time stated in each case. Unless the Licensee has stated to De Gruyter 14 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.
Either party's right to terminate the agreement for important cause remains unaffected. De Gruyter can in particular terminate the agreement if illicit use has been made or if the rights granted by these conditions have been exceeded. Termination for important cause assumes that adequate time has been given in writing for the cause to be remedied without remedy having been effected within that time.
To be valid, Licensee's notice of termination of the agreement must be given in the form of a text. The notice of termination is to be sent by letter to Rhenus Medien Logistik GmbH & Co. KG, Justus-von-Liebig-Str. 1, 86899 Landsberg or by fax to + 49 (0) 8191-97000-594 or by e-Mail to firstname.lastname@example.org.
In the event of the agreement being terminated, De Gruyter will at the Licensee's request only on the extent of the respective offering (purchase model) continue to grant the Licensee access to PDF files of those parts of the subject of the licence which were published during the period of the agreement and which the Licensee subscribed to and paid for. At its own discretion De Gruyter can allow access to the relevant PDF files by either
• permitting a systematic download of the PDF files into an electronic archive of the Licensee's, or
• nominating a third party to grant access as a trusted repository, or
• to provide the Licensee with an individual copy of the PDF files on a data medium (e.g. CD-ROM or DVD).
In such cases, all the Licensee's rights and obligations under these Licence Conditions apply.
All other offerings (rental option, enduser offering) are explicitly excluded from this regulation.
9 Miscellaneous Provisions
De Gruyter processes the Licensee's data electronically. For this, legal data protection regulations will be observed. Regarding personal data, attention is drawn to the Data Protection Statement..
De Gruyter's website contains links to third-party websites. De Gruyter cannot constantly check these sites or influence their contents. De Gruyter does not assume responsibility for these sites or for their technical quality or the quality of their contents
10 Closing Provisions
This Agreement is subject to the law of the Federal Republic of Germany, with the exception of the United Nations Convention on contracts for the International Sale of Goods. The German text of this Agreement shall form the basis for the settlement of any disputes arising from this Agreement.
If the client is a merchant, a corporate body under public law, constitutes special assets governed by public law or is without domestic legal domicile, the exclusive competent court of jurisdiction for all disputes arising out of or in connection with these licence conditions is Berlin.
Should individual provisions of these conditions or of the Licence Agreement be or become null or void or if there is an omission in the Agreement, the validity of the remaining provisions remains unaffected. Instead of the null or void provision, that effective provision is regarded as agreed which approximates most closely in actual, legal and economic terms to the purpose of the non-effective provision and of the agreement as a whole. This applies correspondingly in the event of an omission in the agreement.
Berlin, November 2011