Terms of Service

Terms of Sale, Shipping and Licence
of Vienna Symphonic Library GmbH., Vienna, Austria

(valid as of 01-01-2004, in the following abbreviated TSSL)

I. Validity

Shipments, services and offers of our enterprise are executed exclusively on the basis of these TSSL in the form valid at the time of the shipment, service or offer and independent of the type of legal transaction. All our declarations of intent under private law are to be understood on the basis of these TSSL. We do not acknowledge terms of the client contradictory or deviating from our TSSL if there has been no express written assent to them on our part.

Insofar, actions on our part toward the fulfilment of contracts do not count as implied or conclusive acknowledgement of terms of contract deviating from our TSSL. Verbal promises, side agreements and such, especially if given by resellers, distributors or other third parties, are not considered binding for us. The contents of brochures, advertising announcements or descriptions are not included in the contract if not expressly agreed to in writing. These business terms also serve as a framework agreement for all further legal dealings between the contracting parties.

II. Conclusion of contract and cancellation

We commit ourselves to forward the orderer’s order to one of our distribution partners for acceptance of the order according to the conditions effective and declared on our Website at the time of ordering. In case of writing, printing and calculating errors on the Website we are entitled to cancel the contract.

For conclusion of contract, every order has to be confirmed by one of our distribution partners. Sending or delivering the commodity ordered by the orderer also effects a conclusion of contract. If an offer is made to us, the party making offer is bound to the offer for a reasonable period of time (at least eight days) upon receipt of the offer.

All our offers are understood to be noncommittal and subject to confirmation. All prices named by us are to be understood exclusive of VAT if not expressly stated otherwise. We are committed to execute services and delivery only if the orderer has fulfilled all his obligations required for the use of our products, and is able especially to fulfill all technical and contractual details. If this appears to be in doubt in respective single cases, or if there are any other objections against the appropriate use of our products according to contract, we are not abliged to deliver and free to refrain from taking on the order at any time without giving reasons. This especially holds true if the orderer obviously orders our products for purposes of resale or selling-on, and liability transfer of the contractual commitments and license restrictions through the reseller to the true licensee cannot be guaranteed.

In case our contractor does not deliver the ordered goods for whatever reason and in spite of contractual commitment, we are also entitled to cancellation. In this case, the orderer will immediately be informed that the ordered product is not available. If the purchase price has already been paid it will immediately be refunded.

If the orderer cancels the contract without entitlement or if he demands its cancellation we can either insist on the contract’s fulfillment or agree to its cancellation; in the latter case the orderer is obliged to pay us a lump cancellation charge amounting to 15% of the gross invoiced value.

The orderer on his part is entitled to cancel the contract within two weeks in writing (also via e-mail) or by reshipment of the product in its original packaging which must not show marks of use and whose license agreement seal has to be unbroken. The costs of reshipment are carried by the orderer. If the product has been opened and/or put to use a cancellation is not possible. The possibility that this has been the case suffices; the orderer has to prove that the product was not opened or used in spite of breaking the license agreement seal.

III. Shipping

If not otherwise agreed on, shipping is carried out from stock to the shipping address specified by the orderer. Statements as to the time for delivery are noncommittal provided the date of delivery was not explicitly affirmed by way of exception. Exceedance of up to one week of the terms and times of delivery agreed on (e.g., through mailing and transport) are to be considered reasonable. The customer is entitled to cancel the contract entirely only after expiry of this period and after granting a reasonable period of grace.

Our purchase prices do not contain any costs of delivery, installation and/or instruction in the use of our products. However, on request we will endeavor to assist the customer in searching for suitable service providers in the orderer’s vicinity who are able to furnish these services against separate payment.

IV. Settlement date, payment and default

The purchase price is due at once and fully on ordering. Discounts are not to be allowed without special agreement. The orderer is entitled to pay the purchase price per invoice, credit card, check or direct debit. We do not offer any products for sale to minors, the orderer has to be at least 18 years old. Payments of the orderer are considered effective only upon arrival on our business account or the business account specified by our distribution partner. As long as the payment has not arrived at our or our distribution partner’s account without the possibility of reversal, no delayed delivery can be claimed from us or our distribution partner.

In case of default we are entitled as of the settlement date to charge default interest to the amount of 1,5% per 30 calendar days of default on a pro rata basis. Further claims like especially the claim of higher interest from the title of compensation [titel des schadenersatzes], remain reserved. Furthermore, in case of default of payment we are acquitted from all further service and supply commitments like, e.g., especially the provision of tools and software necessary for using our products via download to the orderer; and we are entitled to keep back such outstanding supplies or services and to demand prepayment or securities.

In case of default the orderer is bound to refund the accruing reminder fee to a lump sum of € 9.00 plus postal charges for each reminder, as well as € 13.70 for record keeping of the contractual obligation per half year. Moreover, all reminder and collection costs necessarily incurred due to the assertion of our legal rights have to be reimbursed, especially those by a collection institute contracted by us.

V. Transfer of perils and title retention

Irrespective of legal regulations the liability of accidental perishing or accidental deterioration devolves to the buyer no sooner than the product is handed over to the protractor even if delivered free.

Until complete settlement of all claims against the orderer, all rights of use and license regarding the goods delivered remain exlusively and entirely in our owenership. If goods in our ownership are reclaimed or recalled, this only constitutes a cancelation of contract if explicitly declared. On accepting returned goods, we are entitled to charge transport and manipulation expenses irrespective of further claims. The orderer is not allowed to pawn or pledge as securities any goods remaining in our ownership (CD-ROM, DVD, software etc.). In case of distress or other claims by third parties the orderer is bound over to assert our claim of ownership and immediately inform us. The orderer bears the full risk for goods in our ownershi, especially for liability of perishing, loss or deterioration.

Insofar as the orderer has executed recordings or works with the goods delivered by us before fulfilment of all our claims, he concedes already at the time of ordering the exlusive right of use and exploitation for all the rights accruing to all such recordings and/or works implementing our products to the extent of our claims and arrears, at the same time transferring all his claims against third parties, insofar as they result from such recordings and/or works implementing our products, in lieu of payment until final payment of all our claims and arrears. If the orderer’s payments to us are delayed, all such incoming sales proceeds have to be prescinded and are only held by the customer in our name. Possible claims against an insurer are already transferred to us within the limits of the law on ordering.

VI. Warranty for defects and liability

The goods have to be checked immediately after delivery, at the latest within six work days. Defects ascertained thereupon have to be notified to us immediately, at the latest within three work days after discovery in writing including a description of the defect’s type and extent. Latent defects have to be notified to us immediately, at the latest within three work days after discovery in writing. If we are not notified of defects or not notified in time, the goods are considered to be approved.

If there is a defect of the sales item for which we are liable, the orderer can either demand rectification of the defect or a replacement delivery. If we are not able or do not agree to rectify the defect or execute replacement delivery because of disproportionality, or if this is delayed over a commensurable period for reasons for which we are liable, or if rectification of the defect or replacement delivery fails in another way, the orderer is entitled according to his preference to cancel the contract or demand an adequate abatement of the purchase price or damages.

If in the following no other circumstances apply, further claims of the orderer – for whichever legal reasons – are excluded. Therefore we are not liable for damage which did not occur to the delivered item itself; and especially we are not liable for lost profits or other financial losses of the orderer. Insofar as liability is excluded or limited by us, this also applies for the personal liability of employees, representatives and vicarious agents.

The above limited liability does not apply if the reason for damage is malign intent or gross negligence, or if personal injury is the case. Furthermore, it does not apply if the orderer claims damages according to a Product Liability Act applicable to us or because of a missing feature which was explicitly guaranteed by us in writing, or because of non-fulfillment. Claims for compensation from a Product Liability Act applicable to us are excluded unless the claimant proves that the damage was caused in our sphere or at least due to gross negligence. If negligence on our part was the cause for a serious violation of legal obligations, our liability to pay damages for material damage is confined to the typically occurring damage.

The warranty period is twenty-four months as of delivery. This period is a limitation period and also applies to claims for damages concerning consequential harm caused by a defect if no claims are lodged from tortious acts.

All claims for damages against us are excluded in case of slight negligence. The claimant has to prove the existence of gross negligence. The limitation period of all kinds of damage claims against us is three years as of transfer of risk. The regulations concerning amages contained in these TSSL or otherwise agreed on also apply if damages are claimed along with or instead of a warranty claim.

The software (excepting library content) has the status of a new development. The orderer explicitly accepts this quality on ordering and acknowledges that it is not possible to develop software programmes in such a way that they would work faultlessly in all possible operating conditions of the licensee. Vienna Symphonic Library GmbH therefore does not guarantee the functional qualities named to the licensee or orderer by program description or marketing documents. These functional qualities are explicitly not assured. Vienna Symphonic Library GmbH is not liable for eventual disadvantages or damages occurring in connection with the use of our software tools. Warranty claims or product liability claims of the licensee therefore are to be considered not statutory insofar as they are waived on ordering. Before connecting to EDP technical products or before installing computer programs and data of our products, the orderer is obliged to sufficiently secure the existing data on his computer setup; otherwise, he has to bear responsibility for lost data and all damages connected to it himself, and in no case is entitled to damages from us.

VII. Features of our products

Vienna Symphonic Library GmbH is in possession of all copyrights, ancillary copyrights and all other rights concerning our products connected with the data contained on CD, CD-ROM or DVD-ROM, and owner of all digitally recorded sounds (including all copies thereof) contained on them. The ownership of our physical products solely and exclusively remains with Vienna Symphonic Library GmbH.

The orderer alone as an individual person who is able to do creative work with the help of the product is the legitimate licensee of the license rights connected with the data contained on CD, CD-ROM or DVD-ROM according to the respective licensing agreement enclosed with our products and explicitly acknowledged and becoming effective on breaking the license seal. The orderer only purchases the license for the content of our products. The physical products are only entrusted to the orderer for the use of the license purchased and for the period of the license agreement becoming effective between us and the orderer or licensee.

VIII. License

Vienna Symphonic Library GmbH gives the orderer alone, on opening and thus accepting the license agreement enclosed with our products, the according to this license agreement non-exclusive, nontransferable right to use the properly acquired and paid copy of a certain sample library of Vienna Symphonic Library GmbH (e.g., Orchestral Cube Pro Edition, Horizon Series Glass & Stones, or the like) or of software containing samples.

The ownership rights for the product itself remain with Vienna Symphonic Library GmbH, the orderer solely acquires the licensing right to use the content and programs of these products for the purpose of creating and/or developing a musical performance, whether recorded or live.

The orderer is explicitly enjoined from renting out, lending, sub-licensing, distributing, retailing, reselling, transferring, copying, duplicating, exhibiting or making publicly available, changing and/or modifying or making available by means of time sharing or similar models to third parties our product or parts of it in physical or non-physical (e.g., digital) form, as disk, formatted or reformatted, in other data forms or formats, mastered or remastered or otherwise treated or edited, for the purpose of using them as sounds, multisounds, samples, multisamples, wavetables, soundsets, programs or patches in a sampler, microchip, computer, software, game console or any other sample playback device or software or other sound programs.

Every software by Vienna Symphonic Library GmbH and any of its parts are protected by international copyright law. The licensee is not allowed to transfer it either gratuitously or nongratuitously, sublicense it or otherwise make it available to third parties whole or in parts. All regulations of the above mentioned license terms for licensees of Vienna Symphonic Library products apply correspondinly.

Upon becoming effective of the license agreement between us and himself, the orderer undertakes to attach or have attached a notice „Orchestral Samples included in this recording courtesy of Vienna Symphonic Library“ (or a corresponding wording) on all credits, liner notes, booklets and/or similar content-related catalogs of the sound carriers produced and/or created and/or licensed by him when using our products. In cinema and/or TV credits a notice is required according to possibility and national law.

If Vienna Symphonic Library GmbH ends the license agreement between itself and the orderer become effective by opening the license seal because of behavior contrary to contract by the licensee and/or his staff and/or vicarious agents, the orderer is held responsible and already upon ordering accepts his responsibility to restore all original products and all copies, backup data and the like of the software, the library and all further developments as well as the entire documentation, manuals, etc. to Vienna Symphonic Library GmbH at his own expense. Vienna Symphonic Library GmbH reserves all rights not explicitly named in these TSSL and in licensing terms.

Upon ordering the orderer accepts his responsibility that all software tools, patches, updates and other customer-oriented download content provided by Vienna Symphonic Library GmbH on its Website and/or on Websites of its distribution partners online and/or in physical form, may only be downloaded by rightful licensees of our products who have read and accepted the license regulations accompanying our products, as well as registered these products with the corresponding serial numbers at the Website of Vienna Symphonic Library GmbH (http://www.vsl.co.at).

IX. Protection of software

On buying our products the orderer undertakes to take all necessary and reasonable measures to protect our products, the software contained therein, programs, parts of programs, files, data, and all contained documentations, manuals, etc. from unauthorized duplication and/or distribution in physical as well as in non-physical form. At the same time the orderer obligates himself not to take any steps, measures or make attempts to circumvent, nullify, hack, or otherwise overcome any method or measure built or programmed into our programs or otherwise connected with them by Vienna Symphonic Library GmbH to protect our products from unauthorized duplication, distribution and/or dissemination.

X. Data protection, change of address and copyright

The orderer has been explicitly informed by us about type, extent, location and purpose of the ascertainment, processing and use of the personal data necessary for executing orders, e-mail messaging services, registering his user data and activating his software tools, and explicitly approves of this ascertainment, processing and use of personal data solely by us and exclusively for the purpose of verifying the compliance with relevant licensing limits.

The orderer furthermore agrees that the personal data contained in the sales contract are automatically stored and processed by us by way of fulfilling this contract. The orderer or licensee is obliged to announce to us changes of his residence or business address as long as the license agreement covered by this contract is effective. If the licensee fails to notify us, declarations concerning him, especially if the license agreement is canceled by us, are considered to be delivered even if they have been sent to the last known address.

XI. Insolvency of the licensee

Besides general legal regulations, the license agreement between the orderer and us – become effective by breaking the license seal – ends automatically and eo ipso without necessary cancelation or other notification from us to the insolvency court, a liquidator or other responsible authorities and/or institutions, and the license granted ends with the day of insolvency filing. Neither the physical products which still remain in the ownership of Vienna Symphonic Library GmbH, nor the license rights themselves can become part of the bankruptcy assets; consequently, all pertinent rights and contents automatically and eo ipso are returned to us.

XII. Place of fulfilment

The place of fulfilment is the domicile of our enterprise.

XIII. Minor changes of service

Minor or other changes of our service and delivery obligations which are acceptable for the orderer are considered approved in advance. This especially holds true for deviations determined by the subject matter (e.g., measurements, colours, type of packaging, number of data carriers, compression techniques, etc.). Technical changes and changes with regard to contents as well as improvements of our products and their content, programs, program parts, and data are always subject to change without notice.

XIV. Choice of Law, Jurisdiction

Austrian Law or, in case of relaying an order to a distribution partner, the respectively applicable law of the distribution partner's country is applicable, explicitly excluding the regulations of IPRG and provisions referring to other laws. The applicableness of CISG is explicitly excluded. The original language of these TSSL is German. Upon placing his order, the orderer approves Der Besteller stimmt mit Abgabe seiner Bestellung für alle aus der Rechtsgeschäftsbeziehung zwischen uns und dem Besteller entstehenden Streitigkeiten der Vereinbarung der österreichischen Gerichtsbarkeit und der Zuständigkeit des am Sitz unseres Unternehmens sachlich zuständigen Gerichts zu.

XV. Salvatory clause

If single regulations of these TSSL should wholly or partly be or become ineffective or impracticable, this does not affect the validity of the other conditions.

Subject to modifications and amendments. All rights reserved.

(P) & (C) 2004 VIENNA SYMPHONIC LIBRARY GMBH.
A-1230 VIENNA, AUSTRIA, DRASCHESTRASSE 89