Ableton AG — General Terms and Conditions (GTC)
1. Scope / Contracting Partner
1.1 These general contractual terms and conditions (GTC) form the basis of all contractual and non-contractual relationships between the Ableton AG (Ableton) and its customers. For purposes of these terms, consumers are natural persons within the meaning of § 13 of the German Civil Code (BGB). For purposes of these terms, entrepreneurs are persons within the meaning of § 14 BGB. For purposes of these Terms, customers are both consumers and entrepreneurs.
1.2 These Terms apply exclusively. Terms and conditions of customers that conflict or deviate from these are inapplicable, unless Ableton has agreed to their applicability in writing. These Terms also apply even if Ableton unconditionally accepts a customer`s offer to conclude a contract knowing that terms of the customer exist which are contrary or deviate from this GTC. These Terms also apply to future contracts with respect to transactions with entrepreneurs.
1.3 The Contracting Partner is the
Schönhauser Allee 6-7, D-10119 Berlin, Germany
Executive Board: Gerhard Behles, Jan Bohl
Ableton can be reached under the following email:
2. Order Procedure / Concluding a Contract
2.1 The conditions with respect to Ableton`s goods are non-binding. Goods can be ordered over the order forms on the Ableton website. An order made over the order forms constitutes a binding offer of the customer to conclude a contract with Ableton.
2.2 The contract exists once Ableton receives the offer and sends a confirmation via email. The contract begins at latest however once Ableton begins actions in fulfillment of the contract. The text of the contract will be stored on Ableton`s internal system and sent to the customer by email.
2.3 The contract will be concluded and executed in German, English or Japanese, depending on which language the customer choses during the ordering process. The customer can view the terms and conditions at any time on Ableton`s websites. The contract is not accessible via the internet once an order is made.
2.4 For purposes of fulfillment of the contract, that is, in order to fulfill the performance due under the contract, Ableton may also make use of vicarious agents.
3. Prices / Shipping Costs / Customs
3.1 The prices on Ableton's website apply, unless agreed otherwise. If the customer is a consumer, the prices indicated are retail prices for the purchased product excluding shipping costs, yet including sales tax insofar as applicable and at the amount valid at the time the order is made. This does not apply for consumers who download software from the Ableton Website in the U.S. state of Texas and for consumers who get shipments from Ableton in the U.S. states of New York, Texas and California. Here a sales tax applies which may vary from county to county. If in the course of its business activities, an entrepreneur places an order, the prices specifications given indicate net prices without shipping costs and excluding VAT.
3.2 The customer carries all shipping costs due. These costs will be depicted separately in the respective order data. Further costs will be due individually in cases of cross-border deliveries, such as additional taxes and / or charges, or e.g. costs in the form of duties. The customer bears these costs.
3.3 After a consumer has exercised the right of rescission (Sec. 7.5) the consumer must bear the regular return shipping cost.
4. Payment / delivery times
4.1 Invoices are payable to Ableton immediately upon receipt. The customer agrees to pay the invoice amount at latest within 14 days of receipt of the respective goods. After this period, the customer is in default.
4.2 Notwithstanding all other rights of Ableton, if a customer is a consumer, the customer must pay a default interest of 5% per year over the base rate pursuant to § 247 BGB during the period of default. Notwithstanding all other rights of Ableton, if the customer is an entrepreneur, the customer must pay default interest of 8% per year over the base rate pursuant to §247 BGB during the period of default. Ableton retains the right with respect to the entrepreneur to prove and assert a claim for higher default interest damages, and likewise the entrepreneur may show that lesser damages exist.
4.3 Ableton is entitled to offset any claims against the customer. Ableton is also entitled to collect claims or have claims collected from the customer’s account, insofar as the customer has agreed hereto.
4.4 The customer has a right to offset only if its counterclaims have been established as legally-binding or recognized by Ableton.
4.5 The customer may only exercise its right of retention, when its counter claim is based on the same contractual relationship.
4.6 The customer may only assign its claims under the contract, if the customer receives prior written consent from Ableton. § 354a HGB remains unaffected.
4.7 Ableton shall provide services within the contractually agreed-upon deadlines. If Ableton is prevented from making a timely delivery due to mobilization, war, riot, strike, lockout, fire, natural disasters, transport problems, changes to legal provisions, administrative measures or the occurrence of other unanticipated events not caused by Ableton, the shipping deadlines will be prolonged accordingly.
5. Transfer of Risk
5.1 If the customer is a consumer, the risk of accidental destruction and accidental deterioration of goods passes to the consumer upon the delivery of goods, in cases of mail orders as well.
5.2 If the customer is an entrepreneur, the risk of accidental destruction and accidental deterioration of the product passes to the entrepreneur upon delivery of goods to the carrier, shipper or other person or institution designated to execute the delivery.
5.3 With respect to the download and sending of data over the Internet, the risk of destruction or modification of the data passes to the customer upon the passage of the data over the network interface.
5.4 The delivery is deemed as performed, regardless of whether the customer is in default with their acceptance.
6. Retention of title
6.1 If customer is a consumer, Ableton retains title to the goods until full payment of the purchase price.
6.2 If the customer is an entrepreneur, Ableton retains title to the goods until full settlement of all claims arising from the ongoing business relationship. If the value of the goods retained exceeds the claims arising from the ongoing business relationship by 10%, the seller is required to release the goods retained at the request of the entrepreneur.
6.3 The customer is obliged to treat the goods with care during the period of retention of title. The customer must inform promptly Ableton of all access to the goods made by third parties, in particular of compulsory execution measures under law, as well as any damages or the destruction of the goods. The same applies, if possession of the goods changes or the customer's address changes. The customer must indemnify Ableton for damages caused by the customer’s breach of this obligation.
6.4 If the customer is an entrepreneur and may exercise a retention of title, the customer is authorized to resell the goods in the ordinary course of business. The entrepreneur herewith transfers all claims hereto up to the outstanding amount, which accrue against a third party from the sale. Ableton accepts the transfer. Following the transfer, the entrepreneur is authorized to collect the debt. Ableton reserves the right to collect the debt itself, if the entrepreneur did not properly fulfill its obligations to pay and the entrepreneur defaults on payment.
7. Warranty / Push – Customer Service
7.1 If the customer is a consumer and does not live in the U.S.A. the statutory warranty shall apply.
7.2 If you have any questions related to warranty, repairs or returns, please contact Ableton Support. In order to avoid unnecessary delays and cost, please do not return any products without first contacting Ableton Support: If you are a consumer residing in the EU your statutory warranty rights are not affected.
Calling from within the USA or Canada:
Monday - Friday 12:00pm to 4:00pm EST
From other countries:
Monday - Friday 11:00 to 15:00 CET
Tel: +49 30 288 763-151
Fax: +49 30 288 763-13
7.3 Push Warranty Information for U.S. Product Purchases
a) What is covered and for how long?
ALL PRODUCTS: ABLETON AG ("ABLETON") warrants to the original purchaser that ABLETON's products and accessories are free from defects in material and workmanship under normal use and service for the period commencing upon the date of purchase from an authorized ABLETON dealer and continuing for the following period of time after that date for one (1) year. ABLETON warrants factory-refurbished merchandise to be free of material and operational defects for a period of one year from original date of retail sale. This refurbished merchandise warranty is not transferable.
b) What is not covered?
This Limited Warranty is conditioned upon proper use of the product by the purchaser. This Limited Warranty does not cover:
- Damage caused by improper installation or improper connection to any peripheral
- Damage caused by an external electrical fault
- Damage caused by any unintended use of the supplied power adapter
- Damage from use of parts not manufactured or sold by ABLETON
- Product purchased from anyone other than an ABLETON authorized dealer
- Modifications to product not approved in writing by ABLETON
- Equipment that has the serial number removed or made illegible
- Normal cosmetic and mechanical wear
- Damage or loss during transit to an Authorized ABLETON Repair Center
- Units that are purchased and/or located outside of the fifty (50) American States and Puerto Rico.
c) What are ABLETON's obligations?
During the applicable warranty period, ABLETON will repair or replace, at ABLETON's sole option, without charge to the purchaser, any defective component part of the product. To obtain service under this Limited Warranty, purchaser must first contact ABLETON customer service at www.ableton.com/help or at 1-646-862-7998 and obtain further instructions on the process. Upon receipt, ABLETON will repair or replace the defective products. ABLETON may, at ABLETON's sole option, use rebuilt, reconditioned, or new parts or components when repairing any product or replace a product with a rebuilt, reconditioned, new or comparable product. Repaired products will be warranted for a period equal to the remainder of the original Limited Warranty on the original product. All replaced parts, components, boards and equipment become the property of ABLETON. If ABLETON determines that any product is not covered by this Limited Warranty, ABLETON will provide purchaser with an estimated repair cost and if purchaser agrees, purchaser must pay all parts, shipping, and labor charges for the repair or return of such product. In case purchaser does not agree the repairs will not be made and the product needing repair will be disposed of unless purchaser within three working days informs ABLETON that the purchaser wants the product returned at purchaser’s cost and provides ABLETON with payment for the return shipping.
d) What are the limits on ABLETON's liabilities?
THE WARRANTIES GIVEN IN THIS LIMITED WARRANTY, TOGETHER WITH ANY IMPLIED WARRANTIES COVERING ABLETON PRODUCTS, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE LIMITED TO THE DURATION OF THIS LIMITED WARRANTY. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, ABLETON SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, LOSS OF PROFITS, DAMAGES TO PURCHASER'S PROPERTY, OR INJURY TO PURCHASER OR OTHERS ARISING OUT OF THE USE, MISUSE OR INABILITY TO USE ANY ABLETON PRODUCT, BREACH OF WARRANTY, OR NEGLIGENCE, INCLUDING BUT NOT LIMITED TO ABLETON's OWN NEGLIGENCE, EVEN IF ABLETON OR ITS AGENT HAS BEEN ADVISED OF SUCH DAMAGES, OR FOR ANY CLAIM BROUGHT AGAINST PURCHASER BY ANY OTHER PARTY. THIS LIMITED WARRANTY IS THE COMPLETE WARRANTY FOR ABLETON PRODUCTS, AND IS GIVEN IN LIEU OF ALL OTHER EXPRESS WARRANTIES. THIS LIMITED WARRANTY SHALL NOT EXTEND TO ANYONE OTHER THAN THE ORIGINAL PURCHASER OF THIS PRODUCT AND STATES PURCHASER'S EXCLUSIVE REMEDY. IF ANY PORTION OF THIS LIMITED WARRANTY IS ILLEGAL OR UNENFORCEABLE BY REASON OF ANY LAW, SUCH PARTIAL ILLEGALITY OR UNENFORCEABILTY SHALL NOT AFFECT THE ENFORCEABILITY OF THE REMAINDER OF THIS LIMITED WARRANTY WHICH PURCHASER ACKNOWLEDGES IS AND WILL ALWAYS BE CONSTRUED TO BE LIMITED BY ITS TERMS OR AS LIMITED AS THE LAW PERMITS.
This Limited Warranty allocates risk of product failure between purchaser and ABLETON, and ABLETON's product pricing reflects this allocation of risk and the limitations of liability contained in this Limited Warranty. The agents, employees, distributors, and dealers of ABLETON are not authorized to make modifications to this Limited Warranty, or make additional warranties binding on ABLETON. Accordingly, additional statements such as dealer advertising or presentation, whether oral or written, do not constitute warranties by ABLETON and should not be relied upon.
e) How does state law apply to this warranty?
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATIONS OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR PERMIT LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO PURCHASERS IN SUCH JURISDICTIONS.
f) Governing Law/Dispute Resolution:
Unless otherwise required by the law of any state or the Commonwealth of Puerto Rico, this Limited Warranty will be governed by and construed under the laws of the State of New York and of the United States. This Limited Warranty shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
This Limited Warranty gives you specific legal rights. You may also have other rights,
which vary from one jurisdiction to another.
7.4 Ableton does not provide customers any guarantees in a legal sense, unless this is done expressly in individual cases.
7.5 Revocation Instruction for EU Consumers
Right of Rescission
As a consumer residing in the EU you may rescind your contract in writing (e.g. letter, fax, email) within 14 days without providing reason or - if the goods are provided to you before the expiration of this time limit - by returning the goods. The time limit begins after receipt of this instruction in writing, not however before the receipt of the goods by the consignee (in case of recurring deliveries of similar goods, not before the first partial delivery) and also not before our information requirements pursuant to Art. 246 § 2 in connection with § 1, para. 1 and 2 EGBGB as well as the obligations under § 312g, para. 1, sent. 1 BGB in connection with Art. 246 § 3 EGBGB. The dispatch of the revocation or the goods is sufficient for purposes of meeting the revocation deadline.
The withdrawal must be addressed to:
Ableton AG, Schönhauser Allee 6-7, D-10119 Berlin, Germany
By email: email@example.com
Consequences of Revocation
In case of an effective revocation, any benefits received by either side as well as any benefits (e.g., interest) derived therefrom must be refunded.
If you are unable to refund the services/goods received as well as any benefits (the amenity and advantage of using) derived therefrom in whole or in part, or only in a deteriorated condition, you must pay us compensation value.
In case of deterioration of the good and in case of benefits you must pay compensation only insofar as the benefits or the deterioration are caused by a use of the good exceeding the examination of quality and functionality. “Examination of quality and functionality” means testing the respective good and trying it out as would have been possible and commonly accepted in a store.
Goods capable of being shipped as parcels shall be returned at our risk. You must bear the regular return shipping cost. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you at the time your rescission or the goods are dispatched to us, for us the period begins at their reception.
Your right to rescind expires prematurely if at your express behest the contract is fulfilled by both parties in full before you have exercised your right of rescission.
End of the revocation instruction
7.6 To ensure an efficient and customer-friendly processing we ask you to please send the returns to the address mentioned in the delivery slip not to the address mentioned above. Compliance herewith is not condition for the effective exercise of the right of rescission if you are an EU consumer.
7.7 A right of revocation does not apply to goods that are produced according to customer specifications or are clearly tailored to personal needs or which are not suitable for return due to their condition (e.g., software that is delivered by download or the serial number sent by email), which are liable to deteriorate or expire rapidly. A right of revocation moreover does not exist for audio or video recordings or software, if the delivered media has been unsealed by you.
8. Limitations of Liability
8.1 Ableton limits liability and the claims that legal representatives and vicarious agents have for contractual and extra-contractual damages from customers based on slightly negligent breach of duty to predictable direct average damages that are typical to the respective form of contract.
8.2 Ableton is not liable for slightly negligent breaches of collateral duties of contract, in so far as the infringement does not jeopardize the execution of the contract. This also applies to its legal representatives and agents.
8.3 The foregoing limitations of liability do not apply to damages for the loss of life, limb or health or in case of mandatory legal regulations, e.g.,damages caused by violations of product liability law.
9. Use rights
9.1 The customer is given a simple, non-exclusive, non-transferable right to use the licensed software for an unlimited period at the time full payment of the invoice is received. In addition, the so-called End User License Agreement applies.
9.2 Ownership of source codes and copyrights to programs remains with Ableton. Designations, data as to ownership and remarks regarding copyright of Ableton may not be altered by the customer. Software and accompanying materials may not be translated, decompiled, disassembled, reverse engineered or otherwise changed by the customer, unless Ableton has allowed this in writing or a limited legal permission exists hereto.
9.3 If the use right granted to the customer ends, for example, after exercise of a contractual or statutory right of rescission, the customer is obliged to erase all stored data, upon which the acquisition of goods purchased from Ableton was based, from its computer system, unless it is this forbidden due to legal or regulatory provision. All data media and copies or written documentation or documentation in text form of relevant data of Ableton must be immediately deleted or returned to Ableton.
11.1 Ableton reserves the right to change or supplement these terms and conditions for the future. The changes will be communicated to the customer by message (e.g., by email) at least two weeks before the proposed changes. Amendments to the GTC will also be announced on the Ableton website.
11.2 If the customer does not express disagreement within two weeks of the change to the GTC (receipt of the declaration by Ableton controls) or the customer continues the contractual relationship through use of the services of Ableton, the change is valid with respect to this customer. Ableton particularly emphasizes that the customer must provide this advance notice.
11.3 Ableton cannot always ensure continuous access to their websites due to technical factors such as telecommunication networks being overloaded. Ableton is in fulfillment of its service obligation, if it grants access to its website and offers over 95% of the total time of a calendar month. Customers will be informed in advance, if Ableton`s service is limited due to maintenance work.
12. Final provisions
12.1 This agreement is governed by the laws of the Federal Republic of Germany. This choice of law applies to customers who are consumers, but only insofar as the protection granted by mandatory provisions of the laws of the country, in which the customer has his habitual residence, is not withdrawn thereby. The choice of law furthermore only applies to customers insofar as no other law is chosen for certain provisions of these GTC, namely for Sec. 7.3. The provisions of the CISG are not applicable.
12.2 If the customer is an entrepreneur, the exclusive venue for any dispute arising from this contract is Berlin. The same applies, if the customer has no general jurisdiction in Germany, or if a domicile or habitual residence are not known at the time the action is brought.
12.3 Should one or more provisions of the contract with the customer, including these Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected. The wholly or partially invalid provision shall be replaced by a provision whose commercial result comes closest to the ineffective provision.
13. Special conditions for contracts with entrepreneurs outside the U.S.A
The following derogations from the GTC above apply to customers, who are not consumers as within the meaning of § 13 BGB, but entrepreneurs within the meaning of § 14 BGB:
13. 1 The right of rescission according to Sec. 7.5 does not apply, if the customer is an entrepreneur within the meaning of § 14 BGB.
13.2 In deviation from Sec. 7.1 the warranty period shall be one year from the delivery of the good.
13.3 In deviation from Sec. 7.1 the customer who is an entrepreneur shall inspect the good for quality and quantity deviations without undue delay after delivery and shall notify Ableton in writing of visible defects within a period of one week as of the delivery of the product. Otherwise assertion of the warranty claim shall be excluded. Hidden defects are to be reported in writing within a period of one week as of the detection.
13.4 Voerde, Germany is agreed as the place of performance.