1. Licensed material, Approved Users
1.1
The German version of the “General Licensing Conditions for Digital Content” applies.
The Helmut Buske Verlag GmbH (hereinafter: Licensor) grants the Licensee the non-exclusive, non-transferable right to access the paid for digital content via »Buske eLibrary« (hereinafter: »Online-Platforms«). The license does not include the rights to sub-let. All content is owned by the publisher. The access to the Online-Platforms will be via the internet.
The General Licensing Conditions for Digital Content regulate the access to the content and their use. If different rights of use apply to certain licensed content that vary in the defined period of time, the agreed type of use or the agreed license fee, it will be arranged in a separate License agreement. Use and access will then be permitted as they are defined in the separate License agreement. The rights of use always apply to one site only (»single-site license«). »Multi-site licenses« (Licenses for more than one site e.g. in different cities) have to be explicitly agreed upon.
1.2
If the Licensee is a consumer within the meaning of Section 13 of the German Civil Code (BGB), the Licensor will set a reasonable deadline for the consumer to declare his explicit acceptance.
1.3
Approved Users are
- 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,
- visitors to the library (Walk-in users).
1.4
The simultaneous use of the licensed content by Approved Users is permitted.
2. Conclusion of the Agreement, Right of Withdrawal
2.1
The online provision for the Online-Platforms does not in itself constitute an offer of contract. The legal offer comes about when an order is placed by the Licensee. The contract is only fulfilled when the Licensee’s access has been announced (e.g. e-mail) or after the Licensee has received the invoice.
2.2
The Licensor reserves the right to modify the Licensing Conditions at anytime. In this case the Licensee will be informed in writing per post or e-mail. The modified Licensing Conditions will become effective, if the Licensee does not object within 7 days.
2.3
If the licensee is a consumer, he may terminate the license agreement in accordance with the statutory provisions (currently within 14 days). The cancellation is made in writing to: Helmut Buske Verlag GmbH, Richardstraße 47, 22081 Hamburg, Germany or eMail: info@buske.de. The right of withdrawal expires prematurely if the licensee has already begun to use the content, ie with the access to contents of the online platforms.
3. Range of Services, Rights of Use
Upon activation of access to the Online-Platforms, the Licensee receives rights of use to the purchased content (e.g. eBooks). The rights of use include inter alia the right to read the full content as well as the right to print out and download parts of the content.
3.1
The licensor shall provide for access to user statistics in standardized formats (e.g., COUNTER).
3.2
The contracting parties agree that the Licensed material is copyright-protected by the Licensors or by a third party. This applies to the Online-Platforms and the content on the Online-Platforms as well as to any other elements that are eligible for protection.
3.3
Access is only granted through IP addresses or usernames/passwords registered with the Licensor. The use through remote access via the VPN (Virtual Private Network) of the Licensee is permitted. In this case, the Licensee has to take appropriate actions to assure, that only the listed Approved Users at 1.3 have access to the VPN. If the Licensee does not have a static IP-address, the use through remote access will be agreed upon separately.
3.4
Walk-in library users are only granted access to the Licensed material via computer workstations within the Licensee’s physical premises. It is not permitted to reproduce the Licensed material or make it publicly accessible (e.g. in the internet) beyond the framework of these Licensing Conditions.
3.5
Approved Users are allowed access to the Licensed material for research and private purposes, allowing to view and search the content and to make individual printouts or electronic copies of individual articles or chapters which do not constitute more than a small portion of a book. Approved Users are also allowed to use small portions of a book to produce printed or electronic teaching materials. In this connection, the Licensee shall ensure that only persons who are authorised users and also participants of the respective course receive access to these readers. Beyond this, it is not permitted to edit, process or alter the content in any way or to convert the Licensed material in whole or in parts into another data format.
3.6
The Licensee may generate temporary local copies of the Licensed material 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.
3.7
Neither the Licensee nor the Approved Users are permitted to use or exploit the Licensed material in whole or in part by any means for commercial or trade purposes. It is not permitted to sell, rent, lease or loan it to third parties. Also it is not permitted to dispatch the Licensed material via commercial, electronic interlibrary loan services or to include it in paid documentation services. As exception to this, it is allowed to respond to a request by another library to generate a print-out of part of the Licensed material (e.g. an article or a book chapter) and to send it via noncommercial inter-library loan services. The use of the “Ariel Interlibrary Loan Software” for the transmission of a small portion of the Licensed material to a printer/fax of another library is allowed, a transmission to e-mail addresses is not permitted.
3.8
The Licensee and Approved Users are not permitted to deploy robots, spiders, crawlers or other automated downloading programs or any other aid to automatically search, index or download the Licensed material continuously (e.g. systematic download, deployment of retrieval software).
3.9
Access to the content is provided to the Licensee exclusively via the Online-Platforms. Archiving of the Licensed material by the Licensee (storage of the electronic data on the Licensee’s servers in whole or in parts) requires prior written approval from the Licensor. The Licensing Conditions apply also to archived content.
3.10
As part of the license to the contents, the Licensee shall receive a corresponding list containing information about any use that may potentially be restricted in time, the acceptable number of simultaneously logins and any fees that may accrue in the scope of the licensing model/publication offer.
3.11
The Licensor shall provide the Licensee with free access to contents not contained in this agreement (e.g., past issues of the journals) above and beyond the agreed-upon amount. This is done as an act of goodwill and may be revoked by the Licensor at any time. These additional rights of use automatically terminate at the end of the licensing period.
3.12
The Licensor reserve the right at any time to withdraw parts of the licensed Property, if it turns out later that they have not or no longer appropriate rights or that third party rights or laws are violated. In such cases the licensee shall be notified by the licensor in due time. If the retracted content represent more than just a marginal share (e.g. individual illustrations) of the total product, the Licensee will be refunded pro rata share costs, unless the useful life of the retracted content was less than twelve months.
3.13
Content, that is available for use but not an explicit part of the Licensee’s order, may be removed anytime from the Online-Platforms.
3.14
Authors’ names, copyright notices, references to registered marks (esp. brands and company names), logos, other references that serve identification or are relevant for copyright purposes, together with liability exclusions, legal reservations etc. may not be removed, altered or suppressed.
3.15
The authorised users are to be informed of these Terms and Conditions of Licence by the Licensee and placed under an obligation to observe copyrights and the Terms and Conditions of Licence. Upon request, the Licensee shall produce proof of compliance with this duty.
4. Security Measures, Technical Requirements, Availability
4.1
When placing an order or registering, the Licensee is obliged to provide truthful, up-to-date and complete details. The Licensee has to keep their user details up to date. In addition, the Licensee is obliged not to share their access data.
4.2
The Licensee will take measures to protect the Licensed material against unauthorized access of third parties. In the event of the loss of access data or if there are grounds to suspect that third parties have made unauthorized use of these data, the Licensee is obliged to report this to the Licensor without delay. In case of unauthorized use, abuse or well-grounded suspicion of abuse, the Licensor is allowed to deny access to the Licensed material. Also, in the event of an abuse the Licensee has to furnish proof which computer/user account was involved in the abuse.
4.3
The Licensor will make appropriate efforts to ensure that its servers maintain sufficient capacity and bandwidth to guarantee availability for the Licensee and the Approved Users. the Licensors responsibility for providing and transmitting data ends at the point where the Licensors servers are linked to the Internet (“handover point”).
4.4
The Licensee bears sole responsibility for the technical requirements to use the Licensed material within the Licensee’s network, especially the connection to the Internet, the maintenance of such connection and the required hardware and software (browser/operating system).
4.5
The Licensor protects the Licensed material appropriately against viruses and hacker attacks – so does the Licensee with his systems. The Licensor is not liable for damage caused by viruses that could have been prevented technically.
4.6
In order to ensure a reliable service, occasional maintenance work – in exceptional cases also a server restart – might be necessary. This might lead to a temporary unavailability of the service, which shall be no cause for customer complaints.
4.7
In case of technical innovations or change of technical components of the Online-Platforms, the Licensee is responsible to adjust his systems to the new conditions. The Licensee will be given sufficient notice of the required adjustments.
4.8
To ensure a smooth running of the Online-Platforms the placing of cookies as well as the use of the software application JavaScript are necessary. The Licensee has to assure that the employed browser software accepts cookies and JavaScript are installed.
4.9
The Licensee shall indemnify the Licensor from all damage arising from any use in contravention of the contractual provisions.
5. Data Protection, Liability
5.1
The Licensor has the right to collect personalized inventory and usage data, to convert and use it in a machine- readable form. Any personal data will be treated confidentially. This data will only be given to third parties in purpose of encashment and credit assessment.
5.2
The Licensee shall take every suitable and arguable measures to grant the terms and conditions under which access to the Licensed material is granted under this Agreement and shall make reasonable efforts to provide Approved Users with appropriate notice of the terms and conditions of these Licensing Conditions. If any violations of these terms occur, the Licensee and the Licensor will inform each other and cooperate in eliminating further abuse. The Licensee shall not be liable for violations of these terms by any Users provided that the Licensee did not intentionally assist in or encourage such abusive use or permit such abusive use to continue taking notice thereof.
5.3
The Licensor agrees to compile, process and present the content made available via the Online-Platforms with care and diligence within reasonable standards. Despite due care being exercised in checking and correcting content, errors might occur.
The Licensor is only liable for compensation – regardless of the legal reason including breach of duty, tort and default –
(a) to the full extent in cases of intent and gross negligence on the part of the Licensor, its representatives or agents;
(b) for typical and foreseeable damage in cases of simple negligence, if an essential obligation (known as a cardinal obligation) has been breached;
(c) to the full extent in the case of breach of guarantee.
The Licensor bears no other liability. Cardinal obligations (in terms of this section 5.3) are all obligations the breach of which endanger performance of the purpose of the agreement, together with all obligations the fulfillment of which allows the contract to be performed and on the fulfillment of which the Licensee can regularly depend. The provisions above do not involve a shift in the burden of proof to the Licensee’s disadvantage.
5.4
The Licensor shall not be liable for technical problems (e.g. line disruptions, power cuts and other problems in the Internet and telecommunications infrastructures) or for problems caused by conditions beyond control, including wars, strikes, floods, or restrictions imposed by the state.
5.5
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.
5.6
No guarantee is given for representations in marketing materials, service descriptions etc. ,except when a formally written confirmation by the Licensor is given.
6. Duration of License, Price adjustment, Termination and Access after Termination
6.1
Subscription contracts for journals (eJournals) shall run for a fixed term of 12 months, based on a calendar year. In case the initial delivery takes place during a running calendar year, the subscription contract becomes retroactively effective as of the beginning of the current year.
Each contractual party has the right to terminate the subscription contract after the fixed term with a notice period of six weeks prior to the end of a calendar year. The subscription contract is extended for a further year, if it is not terminated within the notice period of six weeks prior to the end of the respective calendar year by either contracting party.
6.2.
The Licensee will be informed in writing or by e-mail of any price adjustment. In the case of price increases, the Licensee may terminate the Licence Agreement within two weeks following receipt of the corresponding notification. For this purpose, the written form (letter or e-mail) is necessary.
6.3.
A right of termination on the part of the Licensee on account of malfunctions or limitations in service shall only arise where the disruption is considerable and is also not eliminated within a reasonable period. The Licensee shall likewise have no claim to the elimination of insignificant flaws.
6.4
If not agreed otherwise, the Licensee holds the perpetual right to use the purchased content of the Online- Platforms.
6.5.
Either party’s right to terminate the License agreement for important causes remains unaffected. Should the agreement be terminated, the Licensor will – at the Licensee’s request – continue to grant the Licensee access to those parts of the Licensed material which the Licensee subscribed to and paid for (e.g. by enabling the systematic download of PDF files including the archive rights).
Explicitly excluded from this regulation are all offers that permit time limited access to content (rental/loan options).
6.6
If the Licensor terminates the contract for reasons of continuous violation of the terms of the License (e.g. the systematic download or the unauthorized transfer of content), the Licensee’s rights to the purchased content as described in 6.4 will be void.
6.7
To be valid, notice of termination of the agreement must be in writing. The notice of termination is to be sent by letter to:
Helmut Buske Verlag GmbH
Richardstraße 47
22081 Hamburg
Germany
Fax: 040-299958-20
info@buske.de
To be valid, notice of termination of the agreement must be in writing. The notice of termination is to be sent by letter to:
6.8
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. The exclusive competent court of jurisdiction for all disputes arising out of or in connection with this License agreement is Hamburg.
7. Miscellaneous provisions, Settlement of Disputes
7.1
In order to be able to perform the contractual agreement, it is necessary for the Licensor to carry out electronic processing of the data of the Licensee. The use of the data by the Licensee and/or by the authorised users will be statistically recorded and will also be respectively available to the Licensee. Data protection provisions will be observed in the full scope.
7.2
According to the current state of technology, so-called cookies are necessary for the use of the online-plattform. Should the browser or network settings of the Licensee or of the authorised users preclude cookies, it is possible that registration and/or use is made more complicated or is not possible at all. This does not constitute a ground for complaint.
7.3
The online-plattform contains links to information offers of third parties. The Licensor is not responsible for the offers of third parties and may not be made liable for their contents or technical features.
7.4
Should individual provisions of these Terms and Conditions be void or ineffective, either in whole or in part, or contain any gaps, the rest of the provisions shall retain their validity. In this case, such provision as most closely corresponds to the original agreement shall be deemed to be agreed.
7.5
In accordance with Para. 36, Section 1, No. 1 of the German Law Regulating the Settlement of Consumer Disputes, we expressly point out that we do not participate in dispute settlement procedures that take place before a consumer arbitration board. Any disputes arising from the contractual relationship with the consumer shall be resolved exclusively to the courts respectively responsible for such cases.
7.6
The German version of the “General Licensing Conditions for Digital Content” applies.
February 2017 – Helmut Buske Verlag GmbH
