SCORING BERLIN GmbH
General terms and conditions (terms of distribution)
Supplier: Orchestral Tools
Schwarzer & Mantik GmbH
Am Untergrün 6
D- 79232 March
Tel: +49 (0) 7665 93 98 678
Fax: +49 (0) 7665 93 98 679
Authorised representatives: Hendrik Schwarzer and Manfred Mantik
VAT Number: DE815473873
Amtsgericht Freiburg, HRB710781
2. Conclusion of contract, applicable law, place of performance and place of jurisdiction
(1) The information contained in the internet presentation at http://www.orchestraltools.com is not binding.
(2) Orders are made and the ordering process is carried out solely in English. Our general terms and conditions are also available in German: AGB Deutsch.
(3) If you are interested in purchasing one of the presented products, you can add it to your shopping cart by clicking the blue button “Add to cart” beneath the respective product. Repeat this procedure for any other products you wish to purchase. Once you have finished click the button “Show cart” to display the shopping cart where you should check your order to ensure it is correct and can make changes at any time. Then proceed by clicking the button “Checkout”. Complete the order form on the website in full and then click the button “SEND REGISTRATION”. Your order will be displayed once more. If everything is correct and complete, click the button “Confirm”. By clicking the red button “Correct” you can return to the page on which it is possible to enter and amend your order details.
By submitting your order you are making a binding offer to purchase the items.
(4) You can save a copy of the binding order together with these terms and conditions as a pdf document to the selected storage medium (e.g. the hard disk on your computer) by clicking the button “Save”.
You can print out the binding order together with these terms and conditions by clicking the button “Print”.
(5) Once you have left the order section your order can no longer be retrieved on the internet.
The supplier stores and uses the information provided to him in this way in order to process the purchase as requested. In particular, and insofar as is necessary for payment processing, the supplier forwards the information to the appropriate credit card company or to PayPal, as well as to the company charged with payment collection.
(6) Where the supplier is in agreement he shall confirm the order without delay. The confirmation will be sent to the E-Mail address entered by you in the order form.
The contract is concluded as soon as this confirmation has been received at the E-Mail address entered.
The confirmation contains all essential points of the contract and also includes a copy of these terms and conditions and the cancellation policy.
(7) The contract is subject to German law. The application of the uniform UN sales law, the Convention for the International Sales of Goods (CISG), is expressly excluded.
(8) In the case of contracts with businesses, place of performance and place of jurisdiction in respect of all disputes arising from and in connection with this contract is the place of business of Schwarzer und Mantik GmbH.
(9) Any general terms and conditions of the purchaser are inapplicable.
3. Cancellation policy / returns policy
(1) Customers who are not using the software for their business or self-employed activities have a cancellation right. During the cancellation period they may cancel the contract without giving reasons either in text form (e.g. letter, fax, or E-Mail) or by returning the storage medium supplied containing the respective material. To observe the cancellation period it is sufficient that the storage medium containing the respective material or the notice of cancellation is sent within the stipulated time period. The notice of cancellation is to be sent to the supplier (see clause 1).
(2) The cancellation and return period is two weeks beginning with the date on which you receive the software. In the case of an agreement relating to recurring deliveries (update contract) the cancellation and return period commences on the date the first delivery is received.
(3) The cancellation right expires prematurely
– in the case of a contract for the delivery of software on storage media as soon as the storage media has been unsealed by the customer,
– in the case of software provided for download as soon as the download of the software commences.
(4) In the event of a valid cancellation, the payments or goods received by both parties are to be returned to the other and, where applicable, any profit arising (e.g. interest) surrendered. In the case that you are unable to reimburse the supplier either in full or in part for goods and services received, or these are returned in a poor condition, you are required to provide appropriate compensation. This does not apply if the deterioration of the goods is solely the result of inspecting them as it would have been possible, for example, in a retail outlet. Moreover, such liability for compensation can be avoided if you refrain from using the software as if you owned it and also by refraining from any action that could diminish its value. Storage media which can be sent by post shall be returned to us at our own risk. You are to bear the regular costs of return postage where the delivered software is that which was ordered and the purchase price of the software to be returned does not exceed an amount of 40 Euros, or in the case of a higher purchase price you had not at the time of cancellation paid the purchase price or made a contractually agreed part payment. In all other cases the return postage is free of charge to you. Software which you have copied onto other storage media is to be deleted. The time period commences for you when you send us your notice of cancellation and for us upon its receipt. You are to fulfil your obligation to reimburse us within 30 days of sending the notice of cancellation.
4. Subject and form of supply
(1) The supplier develops and distributes sample libraries, software, sample programs, scripts, impulse responses and samples for use in music and film production. To this end you will receive a download link or DVD(s) or other storage media containing the respective data.
(2) You will receive the contractually supplied software in executable form (object code), where applicable (insofar as it is owed) together with the associated documentation as authorised by the supplier.
(2) The software comes with the functionality described on the “main product page” of the respective product. You may view this functionality before entering into a contract on the respective “main product page”.
(3) The product will be supplied as arranged either by delivery of storage media to the delivery address entered into the order form or by sending a download key to the delivery E-Mail address provided.
(4) Where the provision of updates has been agreed on (update contract), the updates will always and solely be provide by way of a download key, even if the initial delivery was on storage media.
(5) Amendments to the delivery address or the delivery E-Mail address will only be respected if these are notified to us in time, at least two weeks before provision of the update, either in writing or via E-Mail to the address or E-Mail address stated in clause 1 above.
(6) In the case that documentation in digital form is owed, a hard copy of the documentation will not be supplied. The documentation essentially consists of electronic assistance tools.
(7) The installation of the software is not part of the contract but can be arranged with the supplier separately. In such cases the terms of service of the supplier are applicable.
5. Rights of use
(1) Once the one-time payment has been made, the supplier grants you a permanent, non-exclusive, geographically unlimited right to use the software.
(2) One “copy” of the software may be used simultaneously on a maximum of three (3) output devices / workstations.
(3) Should you wish to use the software on more than three output devices, the right of use must be extended accordingly. The extension of the right of use without a new delivery of the software is subject to the supplier’s separate price list for the extension of usage rights. The subsequent extension of the right of use without a new delivery does not entail the provision of a new warranty.
(4) Any use which goes beyond that which has been contractually agreed upon, in particular the simultaneous use of the software on more than three output devices per purchased software copy, amounts to a non-contractual use. In such cases you are obliged to inform the supplier of this additional use without delay. The parties shall then attempt to reach an agreement on an extension of the usage rights. For the period of time in which you have used the software beyond the contractually agreed limits, i.e. up until such time as the usage rights are extended or you cease to use the software on more than three devices, you are obliged to pay compensation for the additional use to the amount set out in the supplier’s price list. In calculating the compensation a four year linear amortisation will be applied. In the event that you fail to inform the supplier of additional use either intentionally or with gross negligence a contractual penalty amounting to three times the price of the usage as per the supplier’s price list is to be paid.
(5) You are entitled to make a backup copy of the software and to take daily backups of data. Making further copies than are necessary for the contractually agreed use including backup copies and data backups is not permitted.
(6) You are not entitled to decompile, amend or edit the software other than to the extent permitted by law, i.e. where this is not necessary for the creation of interfaces to other software products or to remedy problems with the software.
(7) Copyright and other proprietary rights notices in the software may neither be removed nor altered and are to be transferred to any copies of the software made.
(8) Reselling of the software is only admissible where this has been supplied on storage media and where each software copy is resold as a whole, that is by ceasing to use the paid-for copy of the software yourself you are entitled to transfer the right of use to a third party in accordance with the existing usage agreements.
In the event of such a transfer to a third party you are obliged to hand over all material comprising the software which is the subject of the contract and to delete the software on any storage media still in your possession.
Where the software was delivered by way of a download key, the transfer to third parties is prohibited.
(9) Where the third party concerned is a service company (outsourcing) which carries out data processing for you, this service company is only entitled to use the software exclusively for you. By transferring the right of use to this third party company no contractual relationship is established between the supplier and the third party company. Such transfers require the express written consent of the supplier who will only deny this consent for good cause.
(10) Supplementary to, but not in place of these terms, also the license agreement attached at the end of these terms and conditions applies.
6 Payment, due dates
(1) Our website lists the prices both inclusive of and without sales tax at the statutory rate.
(2) Where our contractual partner is a business within the meaning of section 14 German Civil Code (BGB), with its place of business outside the Federal Republic of Germany, and unless we have expressly agreed in writing to the contrary, the prices quoted in US dollars not including sales tax shall apply. Where our contractual partner is a business within the meaning of section 14 BGB, with its place of business in the Federal Republic of Germany, and unless we have expressly agreed in writing to the contrary, the prices quoted in US dollars inclusive of sales tax shall apply. Where the customer is a consumer within the meaning of section 13 BGB, the prices applicable are those inclusive of sales tax at the statutory rate.
(3) The purchase price is due in full immediately at the time of the order.
(4) Insofar as is necessary for payment collection by third parties, the supplier is entitled to forward information provided to him to these third parties (see also clause 2, paragraph 5).
(5) The supplier retains title to the object of purchase until payment has been received in full. In particular the supplier is entitled to prohibit the customer from continuing to use the software and to return any copies of it, or where this is not possible to demand that they be deleted, if the supplier has rescinded the contract, for example because the customer was in default on payment. In the event that a third party has access to the software, the title to which is reserved, before payment has been made in full, you are obliged to inform this third party as to the retention of title on the part of the supplier and to inform the supplier in writing of this access.
7. Material defects and defects of title
(1) The software package or download provides you with software which is free of both material defects and defects of title.
(2) A material defect exists when the software cannot be used as it is described in our internet presentation on the “main product page”.
The supplier continually checks that in respect of the functionality and characteristics of the software no promises are made in other places which go beyond this description.
(3) A defect of title exists when the necessary rights for the contractually agreed use cannot be effectively granted following delivery of the software.
(4) Claims resulting from material defects and/or defects of title normally become statute barred after two years. Entitlement to compensation for material defects and/or defects of title become statute barred after only one year insofar as the supplier is not liable without limitation pursuant to clause 8, paragraphs 2 and 3.
Where the supplier has fraudulently failed to disclose a material defect, claims arising from this defect only become statute barred after three years.
Once a claim has become statute barred payment of the purchase price may be refused as far as the customer would be entitled to do so on the basis of his right to reduce the purchase price or his right to rescind the contract.
(5) The limitation period commences on the date the software is delivered, or, in the case of a download agreement, as soon as you are in possession of the necessary download key.
(6) If defects are discovered you are obliged to report these defects to the supplier in writing without delay. In doing so you should, as far as possible, also indicate how the defect presents itself and what effects it has, as well as the circumstances under which it occurs.
(7) If defects are reported to the supplier during the limitation period, the supplier will remedy the defects free of charge.
(8) As part of the subsequent performance you will receive corrected software which will be delivered in the same way as the original software. An error analysis and resolution on your system on site will not take place.
If you have already input your own data into the software, the software enables you to store this data in a separate location and to reload the data with little effort after reinstallation of the software. Correcting software which contains your own information would cause unreasonable expense to the supplier and as such this can only be demanded in exceptional circumstances when due to the defect the information input into the software cannot be saved elsewhere and then reloaded, and it is reasonable to expect the supplier to carry out such a correction.
The supplier bears all costs associated with the subsequent performance, in particular transport, travel, labour and material costs. You remain responsible for the installation itself. In fulfilling his obligations in respect of material defects and defects of title the supplier shall in particular not carry out installation of the software on site.
Insofar as a program is altered in the course of the subsequent performance and in the case that documentation was owed, the supplier shall amend the documentation free of charge accordingly.
(9) Where the subsequent performance is unsuccessful by a deadline set by yourself, you are entitled to rescind the contract or reduce the purchase price and claim damages in place of performance or compensation for futile expenses incurred.
(10) A deadline need not be set if
a) the supplier declines both types of subsequent performance, even if he is entitled to do so due to the costs incurred or
b) subsequent performance is impossible or
c) it would be unreasonable for you to accept subsequent performance or
d) subsequent performance was unsuccessful.
A rectification is deemed to have failed after the second unsuccessful attempt, except where in particular some other result ensues from the type of software or the defect or other circumstances.
(11) You are not entitled to rescind the contract if the defect is insignificant. In such cases you are also not entitled to demand damages in place of performance in full.
(12) In the case that the contract is rescinded, any usage is to be compensated for. Compensation for use is calculated on the basis of a four-year linear amortisation of the purchase price.
(13) If the purchase price is reduced, it is to be reduced by the amount by which the defect reduces the value of the software in relation to the purchase price. The value at the time the contract is concluded is relevant. Where necessary the amount is to be estimated.
In the event of a purchase price reduction the purchase price already paid above the reduced amount is to be refunded.
(14) If it is established that a reported problem is not due to a defect in the software, the supplier is entitled to charge for analysing and remedying the problem in accordance with the price list for services carried out by the supplier if you noticed or negligently failed to notice that no defect existed.
(15) The duty to provide a warranty no longer applies if changes are made to the software without express written permission or if the software is used in a way or in a software environment other than that for which it was intended, unless you can prove that these facts are in no way connected to the error occurring.
8. Limitation of liability to pay damages
(1) The liability of the supplier to pay damages, irrespective of the legal basis, is limited in accordance with this clause 8.
(2) The liability of the supplier for damage caused by the supplier or one of his agents or legal representatives either with intent or through gross negligence is unlimited.
(3) In addition, there is no limitation to liability for damages due to the loss of life, bodily injury or damage to the health of a human being, even in the case of a negligent breach of duty by the supplier or one of his agents or legal representatives.
(4) There is also no limitation to the liability for damage resulting from serious organisational faults on the part of the supplier, or for damage caused by the lack of a guaranteed quality.
(5) In the case of a breach of significant contractual obligations by the supplier or one of his agents or legal representatives, where none of the situations in clause 8, paragraphs 2 – 4 is applicable, liability is limited to the damage typically foreseeable in the contractual relationship.
(6) All other liability to pay damages is excluded, in particular no liability shall be assumed without fault.
(7) Liability pursuant to product liability legislation is unaffected.
(8) In the event of damage that is the fault of both the supplier and the customer, the customer is liable to the extent of the damage which was his fault.
The customer is responsible for regularly backing up his data. In the case of data loss which is the fault of the supplier, the supplier is liable solely for the cost of reproducing the data from backup copies to be kept by the customer and for the retrieval of data which would also have been lost had a proper backup of the data been taken.
9. Termination of update contracts
Update contracts can be terminated by giving at least two weeks’ notice to 1.6. or 31.12. of a calendar year.
10. Customs and import duties, import sales tax
Where the customer’s place of business is located outside Germany and as such the object of purchase is imported into another country, customs and import duties, as well as import sales tax can be imposed, over which we have no control and the amount of which we cannot foresee. Such customs and import duties or import sales tax is to be paid by the customer and will not be borne by us. For further information regarding the amount of customs and import duties or import sales tax that may be due in an individual case, the customer is to contact the appropriate customs authorities, as the customs regulations can vary significantly from country to country. As an importer, the customer is responsible for observing the regulations of the country concerned. To simplify customs procedures, where software is sent on storage media, we reserve the right to indicate on the package the value of the contents. At the same time the customs authorities may be entitled to open packages in order to simplify customs procedures. We have no control over this.
11. Closing provisions
(1) The customer is only entitled to set off non-disputed or legally enforceable claims against claims of the supplier.
(2) Amendments and additions to the contract must be made in writing. This also applies to amendments to these terms and conditions.