GENERAL TERMS AND CONDITIONS

§ 1 General

Our General Terms and Conditions shall exclusively apply. We do not accept any terms and conditions of the other contracting party contrary to or deviating from our own unless we have expressly agreed this in writing.

These Terms and Conditions shall even apply in the event that we effect a delivery without reservation despite being aware of conditions of the ordering party that are contrary to or deviating from our Terms and Conditions.

All agreements made with other contracting parties for the purpose of performing this contract shall be laid down in writing as part of the contractual instrument.

Our sales conditions shall also apply to all future business deals with the other contracting party.

§ 2 Offer, Order, Related Records

As a matter of principle, our offers, prospectuses and price lists are subject to change and do not represent binding offers. Where we provide on our information pages details concerning technical data, features and the condition of the goods on offer we do not assume any warranty therefor. By these details we do not warrant for any quality of our products. If reasonably acceptable, technical changes shall be reserved.

By ordering our products the customer declares in a binding manner that it wishes to acquire the merchandise ordered.

Where we have made an offer expressly designated as binding to the other contracting party, we shall feel bound by such offer for a period of two weeks.

We may accept the order from the other contracting party within a two-week period. The offer shall be deemed accepted if we fail to reject it within such period.

Unless otherwise specified in our order confirmation, the detail underling the offer shall become an integral part of the order. Subsequent changes require mutual consent. The other contracting party shall bear any additional costs incurred thereby.

The contract is finalised subject to the condition that we ourselves are supplied correctly and sufficiently in advance by our suppliers. This shall only be true in the event that we are not answerable for non-delivery. In particular, it shall be true in cases where the customer’s order to us is to be fulfilled by us by concluding a congruent covering transaction with our supplier.

§ 3 Prices / Terms of Payment

If the other contracting party is a company rather than a private end user, we quote our prices as net prices, i.e., without value added tax. Value added tax at the applicable rate will be shown separately in the invoice. Our prices apply only to the given individual order ex works and exclusive of packaging, transport and cost of door delivery. These costs are charged separately.

If orders are placed from abroad and the merchandise is to be delivered there, our prices apply exclusive of turnover tax.

Should our costs increase after the order has been placed and the contract been finalised due to changes of negotiated standard wage rates and/or of prices charged by our suppliers, we shall be entitled to change the agreed price by the same amount. If requested to do so, we will furnish relevant proof to the other contracting party.

Payments shall be due without any deductions immediately on invoicing. They will always be set off against the oldest outstanding invoice. The deduction of cash discounts shall require a separate written agreement.
In the event that the other contracting party is in default of its payment obligation or a part thereof, it shall, notwithstanding any additional rights on our part, pay interest on the amounts due for payment at a level of 5% p.a. above the base interest rate of the European Central Bank pursuant to § 247 BGB (German Civil Code).

The other contracting party shall not be entitled to setoff, except if its counterclaims are established by a court of law, are undisputed or accepted by us. The other contracting party shall have no right of retention on account of disputed counterclaims.

§ 4 Customs

After a shipment reaches your country it might be subject to import duties and taxes. Additional charges for customs clearance must be borne by you; we have no control over these charges and cannot predict what they might be. Fot further information you should contact your local customs office since customs policies vary widely from country to country. Please be aware that that cross-border shipments are subject to opening and inspection by customs authorities.

§ 5 Cancellation Policy

Right of Revocation

You may cancel your contract within 14 days in written form (e.g. letter, fax, e-mail) without giving any reasons or – if you receive the goods before the deadline – by returning the goods. The time limit starts after receiving a written copy of this notification, but not before receiving the goods (in the case of recurring deliveries of similar goods, then not before receiving of the first part-delivery), and not before us fulfilling our statutory reporting requirements. The revocation period shall be deemed observed if the goods are returned or notice of revocation is given within this period.

Please note that all download sales are final. Native Instruments cannot issue product refunds once a download transaction has begun or cancel any contract for services connected to a download purchase once a download is initiated.

Contact for Cancellation:

NATIVE INSTRUMENTS GmbH
Schlesische Str. 29-30
10997 Berlin
Germany
www.native-instruments.com/sales.info
Tel +49-30-611035-1300
Fax +49-30-611035-2600

Return address for all products:

Consequences of Cancellation

In case of an effective cancellation the received goods and possible emoluments (e.g. interest) need to be returned. If you cannot return the goods or only in a deteriorated condition, you may have to pay compensation. Concerning the surrender of goods this does not apply if the impairment is only due to testing the goods – as you could have done in a shop. In addition, you can avoid the obligation to pay compensation for deterioration of the goods as a result of proper utilization of the goods (i.e. only for the purpose for which the goods are determinated) by not using the goods like your property and by avoiding everything which could reduce their value.

Transportable items are to be returned at our risk. You have to bear the costs of returning the goods if the delivered goods match the ordered and if the price of the goods to be returned does not exceed the amount of 40 Euro or if you have not yet paid for the goods. Otherwise, the return is free of charge. Non-transportable goods will be picked up. Obligations to reimburse payments must be made within 30 days. The time limit begins for you as soon as you send your cancellation or the goods, for us as soon as we receive them.

§ 6 Period of Delivery

The commencement of our period of delivery presupposes clarification of all technical details with the ordering party. Delivery deadlines and services shall only be deemed to be agreed with the customer on a binding basis, if they have been expressly confirmed by us as binding in writing or by e-mail.

Compliance with our duty to perform presupposes the timely and proper fulfilment of obligations by the other contracting party.

Should we be in default of delivery, we shall only be liable for damages caused by gross negligence or wilful intent on our part.

In case of default, the other contracting party shall be entitled to withdraw from the contract provided that it has unsuccessfully fixed a time limit for us to render the performance along with a warning of refusal in the event that such time limit is not met.

In case of default in acceptance, we may claim from the other contracting party compensation for damages incurred by us, including extra expenses. Should the ordering party be in default of acceptance it shall bear the risk of accidental destruction and accidental deterioration of the object purchased.

We shall be entitled to render part performances or make part deliveries at any time.

§ 7 Risk Transfer

If the buyer is a company, the risk of accidental destruction and accidental deterioration of the merchandise shall pass to the buyer as soon as the merchandise is handed over.
If the merchandise purchased is shipped, the risk of accidental destruction and accidental deterioration shall pass to the buyer as soon as the merchandise is delivered to the forwarding agent, carrier or any person appointed for shipping the merchandise, provided that the buyer is a company.

§ 8 Warranty

The other contracting party may assert warranty claims provided that it has duly complied with its obligation to examine and complain according to § 377 HGB (Commercial Code). The ordering party shall be obligated to complain in writing about apparent defects within eight days of receipt of the merchandise (the date of receipt of the written complaint by us shall be decisive). Any complaint received later will only be accepted if the ordering party furnishes proof to the effect that it was impossible or unacceptable in the due course of business to make the complaint earlier. The full onus of proof concerning any and all requirements to be met for asserting the claim, notably the defect itself, the date of identifying the defect and the timeliness of the complaint shall be on the ordering company.

Where we are answerable for a defect of the merchandise delivered, the other contracting party’s right shall be confined to subsequent performance. At our election such subsequent performance shall either consist of rectifying the defect or delivery of a substitute item.

In the event that subsequent performance fails, the other contracting party shall be reserved the right either to reduce the purchase price or withdraw from the contract. Subsequent performance shall be deemed to have failed if we are unwilling or unable to rectify the defect/make substitute delivery or if rectification/substitute delivery is delayed beyond adequate time limits for reasons which we are answerable for or if attempts at rectification have failed twice. More extensive claims of the other contracting party, no matter on which legal grounds, shall be excluded.

If we have negligently breached a cardinal or material contractual duty, the obligation to provide compensation is limited to the damage typically foreseeable under the contract.

The warranty period shall be one year for companies and 2 years for consumers, calculated from the date on which the risk has passed. This period is subject to statutory limitation and shall also apply to claims for compensation in respect of damage consequential to a defect unless tort claims are asserted.

Unless provided for otherwise below, more extensive claims on the part of the ordering party – no matter on which legal grounds – shall be ruled out. Therefore, we shall not be liable for damages other than those occurring on the item delivered itself; in particular we shall not be liable for profits lost or any other pecuniary losses of the ordering party.

The above release from liability shall not apply where the damage is based on intent or gross negligence. However, the obligation to compensate shall be limited to the foreseeable damage.

If the buyer is a company, it shall, as a matter of principle, only be the product specification that is deemed to have been agreed with regard to the quality of the merchandise. Any additional public statements, praises or advertising shall not represent a contractual warranty of quality.

§ 9 Total Liability

To the extent that our liability for compensation of damages is excluded or limited pursuant to § 7, the same shall apply to any and all claims on account of culpa in contrahendo, infringement of collateral duties (positive violation of contractual duty), in particular to claims under manufacturer's liability as defined in § 823 BGB.

Claims specified in §§ 1, 4 Product Liability Law shall remain unaffected by the provision of paragraph 1 above.

If we breach duties by ordinary negligence, our liability shall be limited to the direct average damage typically foreseeable under the contract for the type of merchandise concerned.

Vis-à-vis companies we shall not be liable for violating immaterial contractual duties by ordinary negligence.

Wherever our liability is excluded or limited, this shall also be true for the personal liability of our employees, staff members, associates, representatives and vicarious agents.

§ 10 Reservation of Title

If the other contracting party is a company, the merchandise shall remain our property until full payment of all outstanding claims or claims still arising from the business relationship with the ordering party no matter of which type or on which legal basis. In case of a current account, the title so reserved shall be deemed to secure the account balance receivable.

When entering into contracts with consumers, we shall reserve title to the merchandise pending full payment of the purchase price.

In the event of the other contracting party’s default in payment or any other conduct in breach of the contract, we shall additionally be entitled to take the merchandise back. If we take the merchandise back in such cases, we shall not withdraw from the sales contract by so doing. Withdrawal requires an explicit written declaration.

After taking back the merchandise, we shall be authorised to exploit it; the proceeds from such exploitation – deducting reasonable related costs – shall be credited against the ordering party’s liabilities.

In case of attachment or any other type of third-party intervention, the ordering party shall draw attention to our title and notify us without delay to give us the opportunity to file a claim according to § 771 ZPO (Code of Civil Procedure). If the third party is not in a position to reimburse us for the judicial and extra-judicial costs incurred by an action pursuant to § 771 ZPO, the ordering party shall be liable for the loss suffered by us.

The other contracting party shall be entitled to resell the object purchased in the proper course of business. However, to secure our purchase price claim, it already now assigns to us in an amount equalling that of the final invoice all claims arising in its favour from such resale against the purchaser or third parties. Even after such assignment, the ordering party shall continue to be entitled to collect the amount receivable. We may collect the amount receivable if the ordering party is in default with regard to its payment obligations towards us or if the ordering party is insolvent or has applied for the opening of bankruptcy proceedings. In such a case, the ordering party shall be obligated to notify us of the claims assigned and their debtors, to furnish all particulars required for collection, to hand over pertinent records and to advice the debtors (third parties) of the assignment.

We undertake to release the security owed to us at the ordering party’s request to the extent that the value of our security exceeds the claims to be secured by more than 20%; the selection of the type of security to be released shall be incumbent upon us.

§ 11 Licensing Rights if Software is Purchased

Content from Native Instruments websites (especially audio content, pictures, videos) are only for demonstration purposes and must not be downloaded and / or used in any other form.

In respect of software produced by Native Instruments itself, Copyright Law and the provisions of the respective license agreement shall apply which is located on the installer of the software. You have to agree to the license agreement before you can use the software. No copies of software or documentations must be made unless this is expressly permitted.

In particular the following terms shall apply:

Updates / Upgrades - If you are owner of Native Instruments software products, which qualify you to update or to upgrade to another product or a product bundle, the qualifying licence of your software product will expire by accepting the following contractual conditions. You are no longer allowed to sell or to transfer the qualifying licenses separately. Any qualifying product can be used once only to contract an update or an upgrade offer.

Products including Software and Hardware - Products which include Software and Hardware are only allowed to be resold / transferred combined under the terms of this Agreement.

Bundles - Product Bundles (Hardware–Software-Bundles / Software-Software-Bundles) are only allowed to be resold / transferred combined under the terms of this Agreement.

NFR (Not-for-resale) Products - Notwithstanding other sections of this License Agreement, any products by Native Instruments labeled or otherwise provided to you as NFR (Not For Resale) may be used for demonstration, testing and evaluation purposes only. NFR products may not be resold or transferred. NFR products are exempt from update, upgrade or crossgrade offers, and cannot be purchased with or exchanged for vouchers or coupons. Furthermore, as an owner of an NFR product, you are not entitled to any vouchers that ship with the standard version of the product.

EDU (Educational) Products - Notwithstanding other sections of this License Agreement, any products by Native Instruments labeled or otherwise provided to you as an EDU (Educational) version may only be used by students or those working in educational institutions only. This definition includes students, faculty, staff and administration attending and / or working at an educational institutional facility: private / public schools, colleges, universities and similar. EDU products may not be used for commercial purposes, and may not be resold or transferred. EDU products are exempt from update, upgrade or crossgrade offers, and cannot be purchased with or exchanged for vouchers or coupons. Furthermore, as an owner of an EDU product, you are not entitled to any vouchers that ship with the standard version of the product.

Hardware profiles - Native Instruments grants you, the non-exclusive right to use the Licensed software and hardware on one single computer only (i.e. one CPU). If this single computer is connected to a multi-user system, this License shall apply to all users of the system. You may personally use the licensed software or hardware temporarily on another computer, on condition that the said software and hardware is normally used regularly on one particular computer.

§ 12 Venue / Place of Fulfilment

If our customer is a merchant within the meaning of the Commercial Code, venue and place of fulfilment shall be deemed to be Berlin. However, we shall also be entitled to bring an action against the ordering party at its place of residence or business seat

German law shall exclusively apply.

§ 13 Data Protection

The order is handled by means of automatic data processing. By placing an order, you expressly consent to the processing of the data made known to us within the scope of contractual relations and necessary for handling the order. You also agree that Native Instruments may, for business purposes, pass on the data received from you as part of the business relationship to third parties inside or outside the European Union (such as our USA fulfillment center), observing the Federal Data Protection Law, unless you object to such passing on of your non-personal data in writing.

§ 14 Applicable Law

All contracts made with us are governed by the law of the Federal Republic of Germany to the exclusion of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods. Unless agreed otherwise, the language of the contract shall be German.