Terms of Service, Sale, Delivery and License (in the following called „Terms of License“) of the Vienna Symphonic Library GmbH., Vienna, Austria (in the following called “VSL”)

(Effective March 17, 2022)
 
I. Definitions
 
All intellectual property rights in the software used for the installation and use of the sound libraries of the Vienna Symphonic Library GmbH (hereafter referred to as “VSL”) and all programs for the generation of music and sound files or alterations thereof belong to VSL and its suppliers. VSL (hereafter also referred to as “Licensor”) grants to the Licensee a non-exclusive license to use the software files and other computer data including but not limited to sound files, samples, impulse response sound files and accompanying documentation (hereafter collectively referred to as “Software”).  “Data Carriers” include CDs, CD-ROMs, DVD-ROMs, USB devices, hard drives or any other physical product carrying data, files or software. “Download Products” are files and data digitally transferred (via the Internet). “You”, “Your”, “Customer” and “Licensee” means the person who purchased this license to use a Product or for whom the license was purchased. “Documentation” means the manual or guide and any other material provided by the Licensor together with the software, in any printed or electronic form, or made available by VSL to the Licensee by other means in connection with the Software. “License” means the usage rights legally purchased by a Customer and granted to a Licensee pursuant to these Terms of License.
 
II. Validity and Application
 
Any offer, delivery of product or service by VSL is strictly based on and controlled by the regulations of these Terms of License as listed herein at the time of any sort of action by Customer on the VSL website, at the time of any offer or ordering or delivery of product or service in compliance with applicable laws for any and all sorts of Customer’s own business and/or of the business contact between Customer and VSL and/or its Sales Distributor respectively. Any and all declarations and statements made by or on behalf of VSL are only to be understood and interpreted according to these Terms of License. Any such declarations and statements made by or on behalf of VSL and any declarations, statements and/or Conditions of Ordering of a Customer conflicting with the regulations of these Terms of License as listed herein shall be deemed invalid and irrelevant unless otherwise clearly accepted by VSL in written form.
 
Any action of Customer by which Customer enters into a business relation with VSL using any current or future VSL service or visiting or purchasing from any business affiliated with VSL, whether or not included in the VSL Website, shall be subject to the regulations of these Terms of License applicable to any such offer, service or business relation.
 
No action whatsoever by VSL, i.e. delivery, sale, service and the like, shall be deemed an implied acceptance of any regulations, conditions or statements conflicting with the regulations of these Terms of License as listed herein. Any oral declarations or confirmations, side letters and the like, especially if given by retailers, delivery services or other third parties on their own behalf or on behalf of VSL conflicting with the regulations of these Terms of License as listed herein shall be deemed invalid and irrelevant unless otherwise clearly accepted in written form by VSL. The content of all information materials such as Sales Folders, Technical Data Sheets, Technical Requirement Notes, Advertisements and the like is not becoming part of a contractual relation between Customer and VSL unless otherwise clearly accepted in written form by VSL. These Terms of License and its regulations and conditions accepted by Customer when ordering any VSL Product shall serve as the Basic Agreement for all present and future and additional contracts, business contacts and contractual relationships between Customer and VSL.
 
III. Offer and Order / Cancellation of Order
 
VSL is obliged and guarantees to process any order of Customer for order acceptance and delivery according to the applicable and listed conditions at the time of the order received on the VSL administration systems. In case of typing errors, misspellings and calculation errors VSL is free to withdraw from the contract at any given time within 3 working days after the typing error, misspelling or calculation error has been detected by VSL. If Customer places an order via the VSL website and/or orders by email or is communicating in other possible formats with VSL electronically, Customer consents to receive communications from VSL electronically vice versa. VSL will communicate with Customer by e-mail or by posting notices on its Website. Customer agrees that all agreements, notices, disclosures and other communications provided by VSL to the Customer electronically shall be deemed sufficient and fulfilling any legal requirement that such communications be in writing.
 
Any order shall only become a valid contractual obligation if an Order Confirmation of VSL 
has been issued. Delivery or transfer of a product ordered by Customer prior to an Order Confirmation is to be regarded equal to an Order Confirmation. If VSL is offered any product, service, condition and the like by Customer or any third party, the offering party shall be bound to such offer for a usual term according to industry practice, at least eight days starting from receipt of the offer on the VSL administration systems.
 
All offers by VSL are subject to change and are used for information purposes only. Contractual obligations can therefore only be established by an Order Confirmation by VSL. VSL is only obliged to deliver the products and/or services ordered by Customer if Customer has fulfilled any and all of its contractual obligations necessary for the use and installation of the Products and Services of VSL, especially all such obligations of Customer in regards to technical specifications and Copyright issues as Licensee of VSL.
 
In case of doubt or in case VSL detects circumstances on Customer’s side likely to hinder or circumvent the proper usage of VSL’s Products and/or Services by Customer according to its contractual obligations VSL is not obliged to deliver the ordered VSL Product and are free to withdraw from the contract at any given point of time without any further reason and/or to refuse the order even before confirming it. This is especially applicable if Customer is obviously ordering VSL’s Products and/or Services for Resale purposes and is either not willing or unable to guarantee the Transfer of Licensee’s contractual obligations and restrictions of Customer as Licensee of VSL to its customers and final Licensees.
 
In case of inability of delivery by any supplier of VSL for whatever reason and although its contractual obligations to deliver to VSL remain valid, VSL is free to withdraw from the contract and/or from the order. Customer is to be immediately informed by VSL that the ordered product and/or service is unavailable at the given point of time. If Customer has already paid for the ordered VSL Product such payment is to be paid back instantly by VSL.
 
If Customer withdraws from the contract or if Customer is asking for a cancellation of his order – without the right to do so and/or without VSL’s explicitly written permission – VSL shall have the sole and exclusive right to choose whether to insist on the fulfillment of the contract by both parties thereto or to consent to the cancellation of the order and/or contract.
 
Customer can withdraw from the contract by written notice (including email) or by return of the originally packed product without any traces of usage and without the registration of the serial number(s) of the product on the VSL Website within 2 weeks of delivery for a full refund. The return shipping cost is to be born by Customer, unless the return is a result of an error of VSL.
 
IV. Delivery
 
Unless otherwise agreed and explicitly confirmed in written form by VSL delivery of products on Data Carriers is carried out to the address as notified by Customer in his or her order. Download Products are available after processing and payment of the full purchase price by accessing and transferring the data online via Internet. VSL accepts no responsibility in case of defective transmission of data due to the various networks of the Internet or of incompatibilities due to the user's web browser.
 
Shipping and Delivery Date estimates and/or information about expected Delivery are not binding for VSL unless a specific delivery date and/or time has been explicitly confirmed in written form by VSL. Delays in agreed Delivery Time or Date up to one week (i.e., due to postal and or transportation purposes) are accepted by Customer as standard. Only in case of a delay exceeding one week Customer can withdraw from the contract after fixing a usually applicable grace period according to industry standards.
 
The prices indicated on the VSL Website and/or in any Sales Folder, Information and/or Data Sheets of VSL do not include cost of Delivery, Installation and/or Guidance/Assistance in the application and usage of VSL’s products. Only upon Customer’s explicit request VSL will assist Customer in searching the appropriate companies or contractors at the residence of Customer that will be able to deliver the needed services and/or assistance at separate costs.
 
V. Payments
 
Price for the ordered products and/or services is due immediately without deductions. Without the explicit confirmation in written form by VSL no deductions are applicable. All products and licenses remain proprietary of VSL until full payment is received. Customer may pay the full amount by receipt, by credit card, by cheque or by bank allowance. VSL does not sell products for purchase by children or minors, Customer must be 18 or older and sui juris. If Customer is under 18, he or she will need the involvement and consent of a parent or guardian for ordering. Payments by Customer are deemed received by VSL with confirmed billing on the account of VSL and/or its Sales Distributor according to the applicable bank regulations in the respective territory. As long as such payment has not been received by VSL and irrevocable receipt has been confirmed by the bank of VSL no delay of delivery can be claimed by Customer.
 
In case of delay of payment VSL is allowed to calculate an interest rate of 1.5% per 30 Calendar Days of delay (pro rata). Additional claims by VSL remain reserved. In case of payment delay VSL is immediately and at least for the time of delay freed of all its contractual and fulfillment obligations like, e.g., the allowance of download of additionally necessary tools and software for the regular usage of VSL’s products by licensee and is free to retain delivery of products and/or services until full payment or may request additional pre-payments and/or securities by Customer before further fulfillment.
 
In case of payment delay Customer has to pay the respective costs as a flat-fee of EUR 9.00 plus postage per necessary dunning plus an additional EUR 13.70 Administration Costs per half calendar year for surveillance of missing payments by Customer. Additionally VSL may request all costs incurred necessary for the dunning and receipt of missing payments by the ordering party, especially such costs of an intermediate factoring institute or bank.
 
VI. Transfer of Risks and Ownership
 
Regardless of other regulations by law or industry practice Customer agrees to bear the Risk of accidental loss or damage of the ordered products of VSL – even in case of delivery CIF to Customer – with transfer of such products to the transportation company or deliverer.
 
Until full and irrevocable payment of any and all accounts receivable from Customer all license and usage rights in regard to the delivered products of VSL remain to its full and exclusive extent with VSL only. By requesting the return or accepting the return of the delivered products VSL is not automatically withdrawing from the contract unless otherwise specifically and explicitly agreed and confirmed in written form by VSL. In case of return of the delivered products VSL is free – regardless of additionally possible claims in damages by VSL – to request payment of transportation costs and administration/handling costs incurred. Both software and data remaining in the sole propriety of VSL must not be pawned or transferred to third parties as financial securities. In case of pawning or distraint by third parties Customer is obliged to advocate VSL’s propriety rights in such software and data and to ensure the immediate information of VSL. Customer is fully responsible and bears full risk for all software and data owned by VSL, especially for the risk of loss or damage.
 
In case Customer has used and worked with the delivered products for recordings or any other artistic work or programming prior to the full and unlimited and irrevocable fulfillment of all its obligations, Customer irrevocably assigns within the order of any such product of VSL an exclusive right of usage and exploitation for any and all rights deriving of such usage and artistic work including all copyrights and/or neighboring rights thereby acquired by Customer to VSL to the amount of full payment of all accounts receivable by VSL. Furthermore Customer assigns within the order of any such product of VSL all its possible future claims and/or rights against third parties deriving from such recordings or any other artistic work or programming produced by using and working with the delivered products to the amount of full payment of all accounts due to VSL including possible claims and accounts receivable by VSL relating to the contractual relationship between Customer and VSL as payment security. If payment of Customer is delayed all such received payments from Customer due to Customer’s use and work with the delivered products for recordings or any other artistic work or programming have to be separated by Customer and Customer declares to receive such payments for and on behalf of VSL only. Any sort of claims and accounts receivable against any insurance company of Customer are primarily transferred and assigned to VSL by Customer within the limits and regulations of applicable laws within the order of any such VSL product until full payment of Customer for the ordered VSL Product has been received by VSL.
 
VII. Defects and Damages / Liabilities
 
All products received by Customer are to be checked and examined immediately, at the latest within six working days. VSL is to be informed by Customer immediately, at the latest within three working days after discovery of a product failure and/or damage in written form (including email) including statements and information about type, sort and size of the defect. If Product Failure and/or Damage have been hidden, such hidden defect has to be reported to VSL in written form immediately after discovery, at the latest within three working days. If Customer fails in notifying VSL within such limitations or does not inform VSL in any sort the delivery of products to Customer is deemed to be accepted and agreed by Customer as full and complete.
 
If the delivered products show a product failure and/or damage within VSL’s responsibility Customer can either request reparation and/or replacement of the product. If VSL is not able and/or not willing to fulfill the reparation or the replacement requested by Customer due to unreasonableness of such action or if such reparation and/or replacement is delayed above reasonable time due to VSL’s failure and/or if such reparation and/or replacement is unsuccessful, Customer is free at Customer’s discretion to withdraw from the contract, to request a reduction of price or to place claims in damages.
 
Unless otherwise stated hereafter all further entitlements of Customer – regardless on which legal basis – are excluded. VSL accordingly is not responsible for any damages which are not damages of the delivered product itself. VSL is not responsible for lost profits or other monetary losses of the ordering party. As far as VSL’s liabilities are excluded or limited such liabilities are excluded or limited to the same extent in regards to personal liabilities of employees or officers of VSL, of sales representatives of VSL and of Sales Distributors and/or assistants of VSL.
 
Such limitation of liability as mentioned above is not applicable in case of damages and/or failures due to purpose or gross negligence or if a personal injury is claimed. Furthermore, such limitation is not applicable if Customer claims on the basis of an applicable Product Liability Law, on the basis of explicitly and specifically agreed and confirmed Product Data and/or Product properties in written form or on the basis of failure of delivery. Recourse claims based on a Product Liability Law applicable to VSL is herewith excluded unless the claiming party proves that the product failure or damage has been exclusively or at least primarily caused by a known failure or a failure due to gross negligence of VSL in product development and/or maintenance. If VSL has broken an important contractual obligation its liability for indemnity is limited to the usually evoked damages caused by such failure or negligence of contractual obligations.
 
The term for claims against VSL is limited to 24 (twenty-four) months from delivery. This term is a limitation period and is also applicable for all claims due to consequential harm caused by a defect unless such claims have been based on improper use or negligence.
 
No claims whatsoever against VSL are to be made in case of slight negligence. The claiming party has to prove gross negligence by VSL. The limitation period of claims of whatever kind against VSL is limited to three years starting with the transfer of perils. All regulations contained in these Terms of License or agreed to by VSL regarding damages and liabilities shall equally be applicable if the claim for damages has been made beside a claim based on defects liability (i.e., for replacement, reparation or reduction of price).
 
VSL and its affiliates attempt to be as accurate as possible. However, VSL does not warrant that product descriptions, technical data, product properties or other information or content is always accurate, complete, reliable, current, or error-free. If a product offered by VSL proves to be wrongly or inadequately described and accordingly can not be used by Customer as described, the sole remedy for Customer shall be the return of the product in unused condition and the rescission of the contract.
 
The Software of VSL consists of newly developed programs and accordingly is delivered to Customer “as-is”. Customer has been informed accordingly and explicitly accepts this product status (“as-is”) when ordering. Customer accepts that it is virtually impossible to develop Software properly working in any and all possible hardware and software environments of Licensee without any malfunctions. Thus VSL can not guarantee or assume any liability for the complete and unchanged functionalities and properties of VSL products as described to Licensee and/or Customer in Program Manuals, Sales Folders, Marketing Information and the like. Such Program properties and functionalities are therefore to be regarded as descriptive only and do not become in any way part of the contractual relation between Customer and VSL. Accordingly any such programs are not guaranteed to work properly in each and any hardware and software environment of Licensee. VSL assumes no liability for any loss or damages occurring from or due to the use of the Software of VSL. Any possible claims of Licensee deriving from Product Liability Laws or warranties are thus contractually excluded to the extent permitted by applicable law when Customer orders any VSL Product. Prior to the installation of Programs, Tools and/or Library Contents of VSL to computer hardware and software environments of Licensee Customer is obliged to backup and/or otherwise secure all Data and/or Programs running on its systems, otherwise any damages and losses due to lost data and/or damages and malfunctions deriving from such installation of new VSL programs and/or Data are to be solely borne by Licensee and no claims for such damages or losses based on whatever reason can be brought forward against VSL.
 
VIII. Properties of the VSL products
 
VSL is the sole and exclusive proprietor and the unlimited and unrestricted owner of all Copyrights and Neighboring Rights and all other rights connected to and/or with the Contents of its products as stored on various data carriers including, but not limited to CDs, CD-ROMs, DVD-ROMs, USB Flash Drives, Hard Drives or any other format of a physical product in the future or as transferred online (via download). VSL is as such also the sole and exclusive proprietor and the unlimited and unrestricted owner of all Copyrights and Neighboring Rights and all other rights connected to and/or with the digitally recorded sounds and software applications embedded therein (including all possible copies thereof, be it edited and/or unedited copies thereof). The ownership of the software and data of VSL shall remain always and forever exclusively with VSL.
 
VSL and Vienna Symphonic Library are registered trademarks or trade dress of VSL or its subsidiaries and may not be used in connection with any product or service that is not VSL’s, in any manner that is likely to cause confusion among customers or in any manner that disparages or discredits VSL. All other trademarks not owned by VSL or its subsidiaries that appear on VSL Products and/or the VSL Website or of its Sales Distributors are the property of their respective owners, who may or may not be affiliated with, connected to or sponsored by VSL or its subsidiaries.
 
Customer or the designated recipient of the ordered product(s) is the non-exclusive Licensee of the licensed rights and allowances connected to the contents of the VSL products according to the respective regulations and clauses of the License Agreement as an individual, natural person only, able to develop its own creative and artistic work with the use of the VSL products as stored on CD, CD-ROM, DVD-ROM or any other format of a physical product in the future or as transferred via download. The License Agreement is attached to the VSL products, each product’s Software Installer and/or available on the VSL-Website and comes into force by Customer’s agreement during installation of the software. Licensee thus only is granted the License for the use of the contents of the VSL products but not and in no case whatsoever acquires ownership or control of the software and data which are only lent to Licensee for the time period of the acquired License and the running time of the License Agreement between Licensee and VSL.
 
IX. License
 
By opening and/or installing a VSL Product, and/or by accepting the License Agreement VSL grants to Customer (restricted to the individual, natural person as licensee) the non-exclusive and perpetual license to use the properly acquired and paid copy of a specific Software Product of VSL and/or of Software containing Samples as Sound files (Virtual Instruments) according to the respective regulations and clauses of the License Agreement.
 
Temporary Licenses (“Demo Licenses”) expire after a defined period and are available one-time only exclusively for testing and evaluation purposes of a certain product.
 
Ownership of the physical product remains solely with VSL, Licensee only acquires the License for the use of the contents and programs contained in and/or connected with the VSL products exclusively for the purpose of the recording and/or development of a musical performance be it for a recording (i.e. for sound carriers) or be it for a live performance using such recorded samples and/or Software.
 
Unless expressly permitted by the License Agreement of VSL Product it is strictly forbidden for Licensee to (a) for profit or not-for-profit rent, lease, sell, re-sell, loan, distribute, sublicense, or otherwise transfer the Software or the Sounds it contains or copies of the Software or the Sounds it contains or the accompanying documentation, or any of Licensee’s rights and obligations granted under this License, (b) install or electronically transfer the Software on a network for use by multiple users, unless each user has purchased a license; (c) decompile, reverse engineer or disassemble the Software, or otherwise reduce the Software to a human perceivable form; (d) remove or destroy any copyright notices or other proprietary markings of the Software; (e) modify, alter, or adapt the Software; (f) create derivative works based on the Software, (g) mix, combine, filter, re-synthesize, or otherwise edit the data (sounds and samples), either as provided by VSL or reformatted for use as sounds, multisounds, samples, multisamples, wavetables, soundsets, programs or patches in a sampler, microchip, computer, software, game console or any sample playback device or software or in other sound programs.
 
Each and any Software of VSL is protected by international Copyrights. A transfer of any such software to any third party (transfer of license) is subject to acceptance and agreement by VSL in written form and requires the payment of handling charges. All the conditions for and restrictions of the use for Licensee of Products of VSL and all of Customer’s contractual obligations shall apply correspondingly to such third party to which a license has been transferred with the written consent of VSL.
 
If VSL revokes the License Agreement between VSL and Licensee which has come into force by opening and/or installing a VSL Product due to the attitude and behavior of Licensee and/or its employees and/or Assistants contrary to the License Agreement Licensee is obliged and accepts its contractual obligation hereunder to return immediately and without further necessary steps from VSL all original Products and all copies thereof, all Back up-Data of the Software, the Library and all further Patches and Updates and the like as well as the full documentation, Manuals, and the like to VSL at its own and sole costs and expenses. VSL reserves all other possible rights not expressly mentioned and/or restricted in the License Agreement or herein.
 
When ordering any VSL Product Customer accepts its personal obligation that all Software Tools, Patches, Updates and/or other Download Contents for Customer’s Use which are available online on and through the Website of VSL and/or are made available to the Licensee in physical form may only be downloaded and/or used by legitimate Licensees of the VSL Products who have read and agreed to the License Agreement and its regulations, conditions and restrictions attached to the VSL Products delivered or as listed on the VSL website and who have accordingly registered its individual Product on the Website of VSL (https://www.vsl.co.at) with its individual Serial Number.
 
X. Protection of the Software
 
By ordering any VSL Product Customer accepts its obligation to secure by all available and reasonable steps within Customer’s or Licensee’s sphere respectively the protection of all VSL Products, parts thereof, of all Software, Programs, Program Parts, Files, Data, Manuals, etc. against improper and/or unauthorized use, duplication and/or distribution (both in physical and/or non-physical form). Inter alia Licensee is obliged to refrain from any steps or measures or efforts to remove, to hack, to dissolve by any other means whatever method, system or protection VSL has included, programmed or otherwise connected and/or attached to the VSL Products for the purpose of its protection against improper and/or unauthorized use, duplication and/or distribution (both in physical and/or non-physical form).
 
XI. Protection of Data & Change of Address
 
Customer has been informed properly about type, extent, place and purpose of the registration, administration and usage of its personal data for carrying out orders, for the application of email message services, for registration of its User Data and for activation of its individual Products and explicitly has agreed to this registration, administration and usage of its personal data limited to such purposes only by VSL and/or its Sales Distributors and for the purpose of verifying Licensee’s observance of the relevant conditions, regulations and restrictions of the License Agreement.
 
By ordering any VSL Product Customer agrees explicitly that all personal data contained in the order and the Sales Contract may be registered and stored and used in computer systems of VSL and/or its Sales Distributors for the purpose of the fulfillment of the order and the Sales Contract. Customer and/or the Licensee are obliged to inform VSL of any change of Address (be it private and/or studio address) as long as the License Agreement is still valid. If Licensee fails to inform VSL accordingly all notifications of VSL, i.e., especially in case of revocation of the License by VSL, shall be deemed properly received by Licensee as long as any such notification has been properly addressed to the last address of Licensee VSL has registered in its files.
 
In case of a justified suspicion of misuse, e.g., by providing false information (names, addresses, credit card details, etc.) or by creating several user accounts, VSL reserves the right to disable product registrations, serial numbers, activation codes and the respective user accounts even if other products of VSL had been legally registered on such user accounts.
 
XII. Bankruptcy of Licensee
 
Regardless of additional legal regulations the License Agreement between VSL and the Licensee which has come into force by opening and/or installing a VSL Product thereby accepting the License Agreement is terminated automatically and eo ipso in case of bankruptcy of Licensee (or any similar procedure comparable to a Chapter 11 bankruptcy protection). The Agreement shall end at the day of the filing of bankruptcy (or any such similar procedure) without any further necessary step to be taken by VSL and VSL does not need to revoke or withdraw or otherwise inform the legal institutions, the Official Receiver or the like about this automatic termination of the License. Neither the software and data which have always remained in the property of VSL nor the license itself can become part of the estate and all rights granted to Licensee under the terms and conditions of the License Agreement shall automatically and eo ipso revert to VSL.
 
XIII. Settling Place
 
Settling Place is the place of the principal office of VSL.
 
XIV. Minor Changes of Delivery
 
Customer agrees in advance to any minor or otherwise reasonable changes in VSL’s obligations for Services and/or Delivery. This is especially applicable to changes in the physical Product (i.e., Measurements, Color, Packaging, Number of Data Carriers, Compression Systems, and the like). All technical changes and changes of contents as well as ameliorations of the VSL Products and of its contents, programs, program parts and Data shall remain reserved.
 
XV. Miscellaneous
 
This Agreement shall be governed by and interpreted in accordance with the Laws of Austria (under explicit exclusion of its conflict of law rules). Application of UN Commercial Law is explicitly excluded. By ordering any VSL Product Customer explicitly agrees to submit to the exclusive jurisdiction of the Handelsgericht Wien (Court for Commercial Affairs in Vienna) for all possible disputes and/or proceedings deriving out of its contractual relationship with VSL based on this order. For the purpose of interpretations and legal disputes the original language of these Terms is German. In case of invalidity of certain regulations, conditions and/or restrictions contained herein in part or in total all other parts of these Terms of License shall remain valid and in full force and invalidity or impracticability of any clause shall not interfere with the validity of all other clauses and regulations.
 
Changes and amendments hereto reserved. All Rights reserved.
 
(C) 2022 VIENNA SYMPHONIC LIBRARY GMBH
A-1230 VIENNA, AUSTRIA, ENGELSHOFENGASSE 2