General Terms and Conditions of OT Distribution GmbH & Co KG

(last updated December 5, 2024)

1. Scope / General Terms

1.1. These General Terms and Conditions (hereinafter "GTC") apply to all our deliveries and services, insofar as the contract is concluded via our online store https://www.orchestraltools.com. In particular, these GTC apply to the licensing of musical products, e.g. virtual instruments ("Products") and the registration of an OT account. Separate terms and conditions apply to the licensing of our software players.

1.2. These GTC apply equally to entrepreneurs (Section 14 BGB (German Civil Code)) and consumers (Section 13 BGB), unless it is expressly stipulated in these GTC that a provision only applies to entrepreneurial or consumer customers.

1.3. Deviating, conflicting or supplementary terms and conditions of the customer are not binding for us unless we have expressly agreed to their validity. This shall also apply if we do not expressly object to the validity of the customer's terms and conditions or carry out the delivery to the customer without reservation.

1.4. References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

2. Registration of a customer account / processing of your personal data

2.1. The customer has the option of registering at www.orchestraltools.com and creating a customer account. As a registered user, the customer can log into its customer account using its e-mail address and the password chosen when registering. Registration alone does not constitute any obligation to purchase. Information on the processing of customer data can be found in our privacy information. There is no entitlement to the creation of a customer account.

2.2. The customer must take the necessary precautions to prevent the use of its access data by unauthorized persons. In particular, the customer shall implement suitable protective measures (e.g. password strength, passwords on his computers, burglary protection) to ensure that no unauthorized third party can access its customer account by using its access data. The customer shall inform us immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons.

2.3. For the restriction, suspension and/or termination of the contract for the customer account, section 13 applies.

3. Offer and conclusion of contract / contract language / storage of contractual provisions

3.1. The presentation of goods and services in our online store does not constitute a legally binding offer, but an invitation to place an order (invitatio ad offerendum).

3.2. By clicking on the „Buy Now" button in the last step of the ordering process, the customer submits a binding offer to order the services displayed in the order overview. The customer is bound to its order for 3 days. Immediately after sending the order, the customer receives an order confirmation. A contract between the customer and us is concluded as soon as we accept the order by e-mail, execute the customer's order, in particular by offering to download a product, or if the customer has already made a legally binding payment. The customer must regularly check the SPAM folder of its e-mail inbox.

3.3. The contract language is English.

3.4. The contractual provisions with details of the products ordered, including these GTC, will be sent to the customer by e-mail upon acceptance of the contract offer or upon notification thereof.

4. Prices / Invoicing

4.1. Our prices quoted in euros, plus the applicable value added tax, customs duties, fees and other public charges, shall apply.

4.2. Unless otherwise agreed, our prices stated upon conclusion of the contract or upon call-off shall be decisive.

4.3. The invoice can be made available at our discretion by post, electronically by e-mail or via download.

5. Terms of payment / Default of payment / Offsetting and retention

5.1. Unless otherwise agreed, the purchase price or remuneration must be paid within 8 calendar days of invoicing and provision of the service (in particular in the form of provision of the download) at the latest.

5.2. The customer shall be in default upon expiry of the payment deadline. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (Sections 352, 353 HGB (German Commercial Code)) against merchants remains unaffected.

5.3. In the event of default of payment of an entrepreneur customer, we shall also be entitled to a lump sum of € 40. The lump sum shall be set off against any damages owed insofar as the damage is due to the costs of legal action.

5.4. If the customer is entitled to pay in a foreign currency with our consent, the exchange rate of the respective foreign currency on the day of receipt of payment by us shall apply for the conversion into euros.

5.5. The customer shall only be entitled to set-off and retention rights to the extent that its claim is recognized by us, undisputed, legally established or the customer is entitled to warranty rights. 

6. Delivery

6.1. Products are offered for download in digital form. The download will be made available to the customer in their customer account after order confirmation. The download is made available to the customer in OT Sampler / Kontakt format. The source code is not provided. The file is saved on the customer's computer in the course of the download.

6.2. The customer is obliged to effect the download within 4 weeks after conclusion of the contract.

6.3. The customer is advised that the products can only be used with the software players specified in the order process (e.g. SINE player etc.).

6.4. If the customer deletes its customer account, the customer will no longer be able to download the products. We therefore strongly recommend creating backup copies of the products.

6.5. If it is not possible for the customer to download the desired product for technical reasons, this must be communicated to us immediately. We will then endeavor to make the product available to the customer by other means within a reasonable period of time.

7. Obligations of the customer

7.1. To avoid hearing damage due to any errors in the customer's hardware and/or software environment, the customer must listen to the products in full at a low volume before playing them for the first time. In the event of changes to the customer's system environment, e.g. new hardware or software (in particular new operating systems, digital audio workstations), the customer must repeat this process.  

7.2. The customer is obliged to make backup copies of the purchased products after the download.

8. Rights of use to products

8.1. Upon full payment of the purchase price, we grant the customer a non-exclusive right to use the purchased software product, unlimited in terms of time and territory. Unless otherwise specified during the ordering process, the use of the products is only possible with the current OT-Player at the time of purchase.

8.2. The customer is entitled to listen to the purchased product and to use it for the composition of music and audio productions and to license the results of its work to third parties within the scope of these GTC. Under no circumstances shall the customer have the right to resell, rent or otherwise sublicense the product or parts thereof, unless they are work results within the meaning of the preceding sentence, to reproduce them publicly by wire or wireless means or to make them available to third parties for a fee or free of charge, e.g. by way of application service providing or as "software as a service" or to use them for the training of artificial intelligence (cf. section 9). In particular, the use of the products or parts thereof for the creation of a sound library, a virtual instrument, for any type of synthesizer, a sample library, sample-based products or other musical instruments is prohibited. Individual samples, sound sets or audio loops may not be distributed, except in the context of work results. Furthermore, these samples, sound sets or audio content may not be repackaged in whole or in part as audio samples, sound libraries or sound effects.

8.3. Copyright notices, serial numbers and other features used for product identification may not be altered or removed from the products.

9. Reservation of use in relation to text and data mining and the training of artificial intelligence

The use of reproductions of works and services protected by copyright or related rights for text and data mining and the training of artificial intelligence is hereby reserved and is not permitted without our consent. This applies in particular to the use of our products and parts thereof.

10. Warranty for defects

10.1. If the customer is a consumer, the statutory warranty rights for defects shall apply with the proviso that compensation for futile expenses and damages shall only be awarded within the scope of Section 11.

10.2. If the customer is an entrepreneur, the statutory rights shall apply in the event of material defects and defects of title, unless otherwise specified in the following clauses. In all cases, the special statutory provisions for final delivery of the goods to a consumer (Sections 474 ff. BGB, 445a, 327u BGB (German Civil Code) and any guarantees given by us or third-party manufacturers shall remain unaffected.

10.3. Claims for defects on the part of the business customer presuppose that the customer has fulfilled its statutory inspection and complaint obligations (Section377 HGB (German Commercial Code)).

10.4. In the case of entrepreneur customers, subsequent performance shall be effected at our discretion by remedying the defect or delivering a defect-free product. If the type of subsequent performance chosen by us is unreasonable for the entrepreneur customer in the individual case, the customer may refuse it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

10.5. Claims by the customer for reimbursement of expenses pursuant to Section 445a (1) BGB (German Civil Code) are excluded unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB (German Civil Code)) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB (German Civil Code)). In the event of defects, claims for damages and claims for reimbursement of futile expenses shall only exist in accordance with Section 11 and 12 and are otherwise excluded.

10.6. If the customer becomes aware of defects of title in the products or if claims are asserted against it due to the violation of statutory regulations or due to the violation of third-party property rights or copyrights, the customer must inform us of this immediately.

11. Liability

11.1. We shall be liable without limitation in accordance with the Product Liability Act, in the event of culpable injury to life, limb or health and in the event of intent, gross negligence, fraudulent concealment of a defect or a guarantee assumed by us.

11.2. We shall also be liable in the event of a slightly negligent breach of a material contractual obligation. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. In these cases, however, our liability shall be limited to compensation for foreseeable damage typical of the contract.

11.3. We shall not be liable for the loss of data, in particular audio files, to the extent that the damage is due to the customer's failure to comply with its obligation under Section 7.2 to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

11.4. Otherwise, liability for damages and reimbursement of expenses - regardless of the legal grounds - is excluded.

11.5. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our legal representatives, employees and other vicarious agents. The same applies to the limitation periods pursuant to clause 12.

12. Statute of limitations

12.1. If the customer is an entrepreneur, claims for material defects and defects of title shall lapse within one year of delivery of the product. If acceptance has been agreed in individual cases, the limitation period shall commence upon acceptance.

12.2. The statutory limitation period shall apply to claims under the Product Liability Act, in cases of intent or fraudulent intent, gross negligence, in cases of supplier recourse pursuant to Sections 478, 479 BGB (German Civil Code), the special provisions of Sections 438 Nos. 1 and 2 BGB, Sections 444, 445b BGB (German Civil Code) or in cases of injury to life, limb or health.

13. Restriction, suspension and termination of the customer account / Complaints management

13.1. We may at any time, by means of a legal declaration vis-à-vis the customer, restrict, suspend or terminate access to its customer account in whole or in part with a notice period of 45 days if despite a warning the customer repeatedly or seriously violates its obligations under the law and/or these GTC, in particular with regard to its obligations under Section 8 and 9.

13.2. We may also, at our reasonable discretion, terminate the customer account for business reasons. In these cases, a notice period of 3 months applies.

13.3. The parties also have the right to terminate the agreement on the customer account without notice for good cause. Good cause exists if the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period, taking into account all circumstances of the individual case and weighing the interests of both parties. Such good cause shall be deemed to exist in particular if

• the other party has committed a material breach of one of its obligations under these GTC and the relationship of trust has been irretrievably damaged, and/or
• the other party has committed a material breach of any of its obligations under these GTC and such breach is not remedied or cured within 14 days of notice of the breach by the other party, and/or
• a party repeatedly and not insignificantly breaches its contractual or statutory obligations, and/or
• legal or official obligations require immediate termination, and/or
• a significant deterioration in the financial circumstances of the other party occurs or becomes apparent after conclusion of the contract which is likely to jeopardize the fulfillment of the obligations towards the terminating party and no appropriate security is provided even after a deadline has been set; and/or
• a party is in arrears with its payment obligations which exceed an amount of €5,000.00.

13.4. In cases of restriction, suspension and termination of the customer account, we offer our customers a free internal complaints management procedure for processing complaints. Complaints should be addressed to our customer support team, which can be contacted at support@orchestral-tools.com.

14. Online dispute resolution / consumer arbitration

14.1. The EU Commission offers the possibility of online dispute resolution on an online platform operated by it. This platform can be accessed via the external link https://ec.europa.eu/consumers/odr/.

14.2. We do not participate in dispute resolution proceedings before a consumer arbitration board and are not obliged to do so.

15. Place of fulfillment / Jurisdiction / Applicable law 

15.1. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. This choice of law shall only apply to a consumer insofar as it does not restrict any mandatory statutory provisions of the country in which the consumer is domiciled or habitually resident.

15.2. For customers who are not consumers or who do not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes between us and the customer is Freiburg im Breisgau, Germany.