TERMS OF SERVICE
Native Instruments GmbH. Effective Date 2022-03-01.
1. The following Terms of Service (“ToS”) apply to the subscription offer by Native Instruments GmbH, Schlesische Str. 29-30, 10997 Berlin, Germany (“Native Instruments”, “We”) for the use of and access to respective services provided to you (“Customer”, “User”, “Licensee”, “You”) by us, including all features and functionalities, website, and user interfaces, as well as all content and software associated with the subscription offer (“Service”). Your subscription to the Service may also include additional benefits. Depending on the nature of such benefits, additional terms and conditions may apply.
2. By subscribing to the Service, you declare yourself in agreement with these ToS. If you do not agree with these ToS, you must not use the Service or install any included software or make use of its content.
3. Our Service, its offers and resulting deliveries are made solely on the basis of these ToS. They also apply to all future goods, services, or offers to the Customer, even if they are not agreed to again separately.
4. You must be 18 (eighteen) years of age or over to create an account, and you confirm that you are legally capable of entering into binding contracts.
5. Insofar as the Customer is not legally competent, we assume that the agreement of their legal representative is at hand for the order they make or that the Customer brought about the ordered Service with money that their legal representative made available to them or which was provided with the legal representative's approval by a third party for this purpose or for free disposal.
6. You are responsible for your own account, including ensuring that your details are correct and kept up to date and ensuring that your password is secure. If you think that your account is being used by anyone else, please contact us immediately. If we believe that your account has been compromised, we may suspend your account and we will contact you to try and resolve the problem.
7. Nothing on the Service grants you any license or right to use, alter or remove our copyrighted material. You may not use our trademarks, logos or other intellectual property without our prior written permission.
2. Offer, Order, Offer Documents
1. All of our offers are subject to change and are non-binding insofar as they are not expressly labeled as binding in writing or include a certain deadline for acceptance. The order of the Customer is an offer to us to conclude a contract regarding the Service. With our receipt of the Customer's order, we will send or provide an electronic order confirmation that concludes the contract. Ancillary agreements or changes require our written or electronic confirmation for their validity.
2. Changes to the subject of delivery, in particular those of a technical nature, remain reserved insofar as (i) the subject of delivery is not significantly changed and the changes are not unreasonable for the Customer or (ii) we have not expressly agreed in writing with the Customer that the information about the subject of the delivery or service is binding.
3. Insofar as nothing else is expressly agreed in writing, information about the subject of the Service as well as the related representations are not guaranteed by us. Without another written or electronic promise from us, this concerns merely a non-binding description or labeling of the Service from which deviations are allowed. This applies in particular even if such information is included in our communication or we provide information about technical data and the characteristics of the Service on our informational website pages. In the event that we have agreed to the target quality of the delivery or service with the Customer in a binding manner, changes by us remain allowed to the extent that they take place on account of compulsory legal requirements and are reasonable for the Customer. In the event that they are unreasonable, the Customer has the right to withdraw from the contract. Further going claims are excluded.
4. Insofar as we have made an offer to the Customer that has been expressly designated as binding, we are bound to it for 2 (two) weeks insofar as nothing else has been expressly communicated in writing.
3. The Service
1. We may suspend, withdraw, discontinue, change or remove any audio file, software, the Service or parts of the Service at any time without notice.
2. The legal rights (including the intellectual and industrial property rights) in the Service and any content on it is owned by us or licensed to us by third parties. The Service and its content is protected by international copyright laws and database rights.
3. Native Instruments grants you the non-exclusive, limited, revocable and non-transferable right to use the individual parts of the Service during the term of your subscription. The Service is licensed, not sold to you, and we, together with all third party licensors, retain all ownership right, title and interest therein and thereto.
4. Any other use or exploitation not explicitly granted to you shall not be allowed without written consent from Native Instruments. Specifically, you are not entitled to copy or have copied, decompile or have decompiled, reverse engineer or have reverse engineered the product or parts thereof.
5. We do not guarantee that the Service or any content on it will always be available or be uninterrupted or free from errors or omissions. The quality of the Service may be affected by a number of factors, including, for example, network connection and internal network, as well as any interference or maintenance work. If a disruption or disturbance occurs on the Service or a part of it or if the Service or a part of it is temporarily out of use or inoperative due to repair or maintenance work, updates or reasons beyond our control (force majeure), you accept that such interruptions, disturbances or disruptions do not constitute a defect or delay of or in the Service, and, to the extent permitted by law, we shall not be liable for any consequences of or damages resulting from such interruptions, disturbances or disruptions. We or a third party shall seek to repair the problems or failures as soon as possible and to restore the Service to use as soon as possible under the circumstances. We have the right to update the software included in the Service from time to time.
6. You agree that Services provided free of charge or as free add-ons might differ from paid offers and may change in features, scope of functionality, or content or may be removed completely.
7. If you use a third party product, you agree that Native Instruments makes your registration data available to the third party.
8. You must ensure by appropriate and reasonable steps that third parties cannot make unauthorized use of the Service. You are liable to Native Instruments for any loss or damage in this context.
9. Native Instruments is not obliged to cede the software underlying source code, including the associated development documentation.
10. Licensee may copy the licensed software if such reproduction is necessary for the contractually agreed use. Licensee is authorized to create a backup if this is necessary to secure future use.
11. Licensee is not authorized to modify the software, unless it is to preserve or restore the agreed functions of the software.
12. Renting or lending the licensed software to a third party is expressly forbidden. You cannot resell or otherwise transfer the Service or parts of it to a third party.
13. The Service may include links to other websites. These links are provided for your convenience to provide further information and should not be interpreted as endorsement. We assume no responsibility for the content and we will not be liable for any loss or damage that may arise from your use of them.
14. We welcome your feedback to continuously improve our Services and products. Except where expressly provided otherwise by us, all comments, feedback, information, or materials submitted to us through or in association with the Service (”Submissions”) shall be considered non-confidential and our property. By providing such Submissions to us, you agree to assign to Native Instruments, at no charge, all worldwide rights, title, and interest in copyrights and other potential intellectual property rights to the Submissions. Native Instruments shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide and that you, not Native Instruments, have full responsibility for the Submissions, including their originality, reliability, legality, appropriateness, and copyright.
15. While we strive to offer a multilingual experience throughout all our Services, we may offer certain services, software, and other communication in English only. This does not construct a fault or deficit of the Service.
16. As part of certain Services, you may be able to store information on our Services. You understand that such personalized storage is not designed for secure storage of sensitive information like personal information.
4. Registration, Activation, Usage
1. Native Instruments is providing different services and software tools for managing your installations, registrations, and activation. You need to maintain an account and use these tools in order to register, download, install and activate the products.
It is not possible to use the products that are not activated beyond the so-called “demo mode” (up to 15/30minutes use) or “freeze mode”. Activation depends on an active subscription which can include both paid subscriptions as well as subscriptions free of charge.
3. Your account is a free service offered by Native Instruments. It can be used to access services including, but not limited to product license storage, access to download services, and support services. In order to purchase or subscribe to products, you store billing and shipping information and link to payment information stored by third parties (e.g., PayPal). Native Instruments is not storing sensitive payment information on its services. You may choose to link your account with services offered by third parties. In such cases, you agree to share information necessary to provision such linking between Native Instruments and the third party.
4. The Native Instruments’ activation uses information about essential system components of your computer, and encodes this information in a "Activation Request Code". This information does not include any personal data. The Activation Request Code is used to create an activation key, which works only on the computer where the Activation Request Code has been generated. You agree that the use of a product as part of the Service requires an internet connection at least once per subscription term for activation purposes. You may be required to log into your account in order to access or continue to be able to access the Service. Your timely payment of open account balances, including taxes and fees, is a requirement for obtaining and retaining access to the Service. You are solely responsible for maintaining sufficient funds and means of payment for interruption-free access to the Services.
5. The Service may automatically download and install updates from us in order to enhance functionality, or fix bugs. You agree to receive and install such updates as part of your use of the Service.
6. If you want to use your product on a different device or make extensive changes to your device, you may need to re-activate your product.
7. You may not sell, rent, loan, lend, give, sublicense, or otherwise transfer to anyone the audio files other than as incorporated into your productions. This license authorizes only one natural person to license, download and use the Service.
8. As licensee you may install and personally use the Service on three devices (e.g., one computer, one laptop, one workstation), provided that the Service is used only on one device regularly. Simultaneous use on more than one hardware device is not permitted. The Service may not be used on a network by multiple users, unless each user possesses a license. In case Licensee sells their hardware, all software on the hardware must be deleted.
9. You agree that you will not:
a) impersonate any other person, conduct yourself in an offensive or abusive manner, or use the Service for any unlawful purposes;
b) use virtual private networks, false email addresses or any other means to mask your identity;
c) attempt to access the accounts of other users or upload, share or submit content containing any spyware, adware, viruses, corrupt files, worm programs or other malicious code designed to interrupt, damage or limit the functionality of or disrupt any software, hardware, telecommunications, networks, servers or other equipment, or Trojan horse or any other material designed to damage, interfere with, wrongly intercept or expropriate any data or personal information;
d) disable or modify any copy protection technology used on the Service;
e) abuse any rating system on the Service;
f) alter or modify, translate, adapt, merge, make derivative works of, decompile, disassemble, reverse compile, reverse engineer or otherwise attempt to derive the source code for any part of the Service or any of the Services;
g) collect, harvest or ‘scrape’ any data from any web pages contained in the Service;
h) upload, share or submit content that is or may be interpreted as obscene, indecent, pornographic, sexually explicit, libelous, maliciously false, inaccurate, misleading, depicting violence (in an explicit, graphic or gratuitous manner), offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or cause annoyance, inconvenience or needless anxiety to any person or be in breach of hate speech or discrimination legislation;
i) upload, share or submit any content that infringes any proprietary rights of any third party including any patent, copyright, moral right, database right, trademark right, design right, trade secret rights in passing off, rights of privacy, publicity, or confidence, under data protection legislation or other intellectual property law;
j) do or omit to do anything which would bring us, the Service, our suppliers or other users into disrepute or in any way damage our or their reputation; or
k) interfere with another user’s use and enjoyment of the Service or the Content in any other manner that could damage, disable, overburden or impair the Service or the Content.
10. We may suspend, restrict or terminate your account and your access to the Service if we believe that you have breached these ToS. This does not limit our right to take any other actions against you that we consider appropriate to protect our rights.
11. For audio content the following Sound License Agreement shall apply in addition to the ToS:
The provided audio content, i.e., samples, instruments, sound sets, loops or presets (“Content”), may be used for commercial or non-commercial music and audio productions without the prior permission from Native Instruments under the terms of this Sound License Agreement.
The usage of the Content for the creation of a sound library or as a sound library for any kind of synthesizer, virtual instrument, sample library, sample-based product or other musical instrument is strictly prohibited. Individual parts of the Content may not be distributed standalone (commercially or otherwise). Furthermore, the Content may not be repackaged in whole or in part as sound libraries, audio samples or sound effects.
12. Any Service or product labeled or otherwise provided to you as "NFR" (Not For Resale) version shall only be used for demonstration, testing and evaluation purposes. NFR versions must not be resold or transferred. NFR versions are exempt from update, upgrade or crossgrade offers, and cannot be purchased with or exchanged for vouchers or coupons. Furthermore, as a Customer of a NFR version, you are not entitled to any vouchers that may ship with the standard version.
13. Any Service or product labeled or otherwise provided to you as “EDU” (Educational) version shall only be used by students or those working in educational institutions. 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 versions must not be used for commercial purposes, and must not be resold or transferred. EDU versions are exempt from update, upgrade or crossgrade offers, and cannot be purchased with or exchanged for vouchers or coupons. Furthermore, as a Customer of an EDU version, you are not entitled to any vouchers that ship with the standard version.
14. Any Service or product labeled or otherwise provided to you as "Demo” version shall only be used for demonstration, testing and evaluation purposes. Demo versions must not be used for commercial purposes, and must not be resold or transferred.
15. Any Service or product in an evaluation phase (“Trial”) shall only be used for demonstration, testing and evaluation purposes.
5. Prices, Conditions of Payment, Taxes
1. The prices agreed between us and the Customer apply only for the scope of delivery and service in our respective confirmation. Any additional or special performances may be charged separately.
2. Payment obligations are always due in advance for the entire term of the Service subscription unless otherwise expressly agreed in writing.
3. The Customer is only entitled to set off with counterclaims if the counterclaims are established by court of law, undisputed, or recognized by us. Furthermore, it is only allowed to exercise a right of retention insofar as its counterclaim is due and based on the same contractual relationship.
4. Depending on the location of the Customer, the Service may be taxed with Value-Added-Tax, sales tax and/or other duties. In some jurisdictions (like e.g., USA), the product price is exclusive of applicable sales taxes. In such cases, the potentially applicable sales tax is assessed upon each renewal, and you agree that the total subscription price may be adjusted in case of a sales tax rate change.
5. Please note that prices may differ depending on your geographic or regional location, or at our discretion.
6. At the end of the Trial the subscription you chose starts automatically unless you chose to cancel previously through your account, and we will charge your payment method accordingly.
6. Right of Withdrawal for Consumers
1. If you are a consumer resident in the European Union, you may have the right of withdrawal of your subscription without giving any reason, and ask for a refund within 14 (fourteen) days of the conclusion of the contract. However, as explained below, this right is lost as soon as you download or use any of the content or software or other parts of the Service.
2. To exercise the right of withdrawal, you must inform us of your decision to withdraw from this contract by an unequivocal statement (using the tools provided on the Service or e.g., email, fax, letter). You may use the model withdrawal form, but this is not obligatory. Please make sure that you include the details of your subscription so that we can identify it. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
3. If you validly withdraw from our contract, we shall reimburse you the price you paid for the Service without undue delay and in any event not later than 14 (fourteen) days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
4. If you subscribe to the Service, you expressly accept that we start providing you with this Service within your 14 (fourteen) days withdrawal period, and you accept these terms, conditions, limitations and requirements. You acknowledge that by receiving or accessing the Service, you will lose your statutory right to withdraw from the Service.
7. Term, Renewal, Termination
1. We offer different fixed terms of Service as shown in your account, our website offerings and other offers. You may prolong and change the term of your subscription in your account.
2. In case of monthly subscriptions the length of the respective subscription period is depending on the amount of days between the signup date and the day of the following month; the length is not standardized to 30 (thirty) days whereas billing is always on the same day of the month. Yearly subscriptions, if not extended or terminated, are automatically renewing at the end of the year and may then get terminated monthly. Access to the Service is then still possible until the end of the term.
3. You may cancel your subscription in your account at any time. Depending on the individual contract term, the cancellation will become effective at the end of the respective billing term. After cancellation, you retain access to the Service until the end of that term.
4. You can resubscribe to a canceled subscription while it is still active. Once effectively ended, you may be able to resubscribe later, unless the respective Service offer has been discontinued.
5. You may terminate your subscription during the agreed term only if we are in material breach of these ToS, and we have continued to breach after a cure period of 30 (thirty) days.
6. We may suspend or terminate your subscription, and/or all other services or your account if
- you are in material breach of these ToS.
- you have failed to timely pay your open account balance with us or initiate a chargeback.
- you become subject of bankruptcy, insolvency, liquidation or any proceeding that may lead to any of those.
- we become aware of fraudulent activity on your account.
7. In the event of an extraordinary cancellation of the contract or a respective termination, you are only entitled to a refund of the prorated, unused subscription time and potential prepayments.
1. To the extent permitted by law, we exclude all conditions, warranties, representations or other terms which may apply to the Service or any content on it, whether express or implied.
2. We will not be liable to you for any lack of performance, or the unavailability or failure of the Service or our services, or for any failure by us to comply with these ToS, where such lack, unavailability or failure arises from any cause reasonably beyond our control.
3 .Consumers are entitled to various statutory warranties (including, for example, that any service is carried out with reasonable care and skill, and any digital content provided is of satisfactory quality). Nothing in these ToS shall have the effect of excluding or limiting those statutory warranties that may not be excluded or limited under applicable law.
1. Nothing in these ToS limits or excludes our liability for: (i) death or personal injury by our negligence; (ii) fraudulent misrepresentation; or (iii) any other liability that cannot be excluded by law.
2. We are solely liable for damages regardless of legal reason, in particular from impossibility, arrears, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, or for tortious acts pursuant. For the rest, any liability for damages is excluded.
3. We are liable in the scope of the statutory provisions on account of intentional or grossly negligent actions of our legal representatives or managers, on account of injury to life, limb, or health, and for guaranteed characteristics and pursuant to the provisions of the German Product Liability Act (Produkthaftungsgesetz).
4. Furthermore, we are liable
- For damages from the slightly negligent breach of material contractual obligations by our legal representatives, managers, and other agents;
- For damages that were caused by our simple agents grossly negligently or intentionally without breach of duties material to the contract.
- For damages from the slightly negligent breach of material contractual obligations by our legal representatives, managers, and other agents.
5. Material contractual duties are those for which fulfillment makes orderly fulfillment of the contract possible in the first place and adherence to which the Customer regularly counts on and may count on.
6. Our liability for damages is limited to the amount of damages that are typical of the contract and foreseeable.
7. Furthermore, indirect damages and consequential damages that are a consequence of defects in the subject of delivery can only be reimbursed to the extent that such damages are typically to be expected during proper use of the subject of delivery.
8. Claims for damages on account of lost profit are excluded in any case.
9. Insofar as we give technical information or act as consultants and this information or advice does not belong to the scope of performance owed by us and contractually agreed, this occurs at no charge and to the exclusion of any liability whatsoever.
10. We are only liable for loss of data if, and insofar as the Customer has ensured with a backup copy or in another manner that the data can be restored with a reasonable amount of effort. In this case, our liability is limited to the effort for recovery. We are generally not liable for the loss of data if and insofar as the Customer is responsible for them.
11. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of the Service or to your downloading of any content on it, or on any website linked to it.
12. Insofar as the Customer wishes to make a claim pursuant to the regulation above, they will inform us and consult with us in a comprehensive manner without delay. The Customer is to give us the opportunity to inspect the damage event.
13. The time barring period for claims for damages on account of defective delivery amounts to one year after transfer of risk. The time barring period for claims for damages on account of the breach of other contractual duties amounts to one year after the end of the year in which the claim arose and the Customer gained knowledge of the circumstances founding the claim and gained knowledge of the debtor party or must have gained knowledge of it without gross negligence. In the event of injury to life, limb, or health, for damages pursuant to the German Product Liability Act, and for those caused by the fraudulent conduct, intention, gross negligence, or negligent breach of material contractual duties of our legal representatives, managers, or agents, the statutory statute of limitations is applicable in deviation from this.
10. License Rights
Content on our website, maybe labeled as not for sale, in particular audio recordings, pictures, videos, are protected by copyright and intended for demonstration purposes only. They may not be downloaded and/or used in any other way without the agreement of Native Instruments.
11. Intellectual and Industrial Property Rights
1. Insofar as nothing else has been expressly agreed in writing, we only warrant that the Service does not infringe the intellectual and industrial property rights of third parties (“Copyrights”) in the country of delivery unless we are positively aware of Copyright infringements at the domicile of the Customer or in another such country that the Customer has reported to us in writing where the Service is to be brought in an orderly manner. Insofar as a third party makes claims against the Customer on account of breach of Copyright by products delivered by us and used in a contractual manner, we are liable to the Customer as follows:
a) The Customer is to inform us of the Copyright infringements claimed by the third party without delay in writing. We will fulfill, defend against, or end these claims with a settlement at our own expense according to our own discretion. To do so, the Customer grants us the sole authority for the legal defense and settlement negotiations and will issue us the powers of attorney necessary for this purpose in individual cases, including the right to issue corresponding sub-powers of attorney.
b) Insofar as the delivery constitutes a Copyright infringement within the meaning of described above, we will rectify the reason for the Copyright infringement within a reasonable period. According to our choice at our expense for the concerned performance, we will either induce a right of use, change the subject of delivery so that the Copyright is not infringed, or exchange it. The provisions of these ToS about Warranty apply in the corresponding manner to this extent.
c) If the rectification of the Copyright infringement fails or if the rectification is not possible under reasonable conditions or unreasonable for the Customer, the Customer is entitled to the statutory right of cancellation or price reductions. Claims for damages of the Customer against us are based Liability in these ToS.
d) We are not liable for the claims of third parties on account of Copyright infringements insofar as they are caused by special requests of the Customer, a use not foreseen by us, or on account of the fact that the Customer or an unauthorized third party changed the subject of delivery or it is not being used under the recommended conditions or under the agreed conditions or together with products not delivered by us. In general, we are not liable for the claims of third parties on account of Copyright infringements insofar as the Customer is responsible for this. Should third parties make claims against us with regard to this, the Customer shall release us from them.
e) We are also not liable to the Customer if the Customer acknowledges the infringement towards the third party without our prior agreement or in the event that it discontinues use of the product without informing the third party that the discontinuation of use does not constitute acknowldgement of a Copyright infringement.
2. The regulations on the statute of limitations from the clauses within these ToS about Warranty and Liability apply in the corresponding manner.
12. Data Protection
2. We may be offering access, purchase and subscription of third party offers. You understand and agree that it might be necessary to share information about respective transactions with these third parties in order to fulfill the contractual obligations with you and the third party.
13. Consumer Dispute Resolution
Native Instruments does not agree and is not obliged to solve disputes with consumers via a Consumer Arbitration Service.
14. Applicable Law
All contracts with us are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CSIG), whereas consumers regularly residing abroad may as well rely on mandatory applicable laws of the state where they are a resident.
15. Final Provisions
1. If any stipulation of these ToS should be or become invalid, either completely or in part, this shall not affect the validity of the remaining stipulations. The parties undertake instead to replace the invalid stipulation with a valid regulation that comes as close as possible to the purpose originally intended.
2. We reserve the right to update, modify, revise or amend these ToS, at any time in our discretion, to reflect new features and content as well as any modifications to the delivery and function of the Service. By continuing to access or use the Service after any such change becomes effective, you agree to be bound by the revised terms.
3. You may not assign, sublicense or otherwise transfer your rights or obligations under these terms to anyone else. You agree that we may assign or transfer any of our rights or obligations under these terms.
4. Should you have any queries concerning the ToS, please contact our Customer Support: