General Terms and Conditions (Terms)

&

End User License Agreement (EULA)

between

Incredible Audio GbR
a partnership formed under the German Civil Code by Jonathan Feurich and Benedikt Schöller
Breisgauer Str. 18
14129 Berlin
Germany
(also referred to as „we“, “us”, and “our”)

and

its Customers
(1) Subject Matter
(a) We develop audio software plugins (our “Products”) for professional and non-professional users. Our Product offerings are directed to both Consumers and Business Customers (as defined below), but in each case only to end users (all together referred to as our “Customers”, hereinafter also referred to as “you” and “your/s”). For the purpose of these Terms & EULA, (i) a “Consumer” is any individual entering into a contract for a purpose not related to its business, trade or self-employed professional activity, and (ii) a “Business Customer” is an individual, company or partnership vested with legal capacity who enters into the relevant contract in the conduct of its business or its self-employed professional activity.
(b) We grant you a software license (“License”) for the use of our Products subject to section (2) of these Terms & EULA.
(c) The purchase of a Product is handled via the MyCommerce platform of our partner Digital River GmbH, Scheidtweilerstr. 4, 50933 Cologne, Germany, phone: +49 221 31088-30, facsimile: +49 221 31088-29, https://www.mycommerce.de/de (“MyCommcerce”), who is an authorized reseller of our Products and becomes your sole contractual partner regarding the purchase. MyCommerce sells our Products subject to their general terms and conditions and their privacy policy.
(d) After purchasing one of our Products we will send you an e-mail containing a license code. In this e-mail, you will be asked to first register and create an account in our licensing system (“Account”), if you have not already done so. To register, you have to provide your e-mail address and a password subject to our Privacy Policy pursuant to section (7) of these Terms & EULA. Once you registered and logged into your account at https://www.incredible-licensing.com you can download and install the Product and then activate it by opening it and entering your account’s e-mail address, license code, and password.
(e) We provide our Products and grant the according Licenses exclusively on the basis of these Terms & EULA. Standard business conditions or general terms and conditions of the Customers do not apply, regardless of whether we expressly object to them in a particular case. The contract language is English.
(2) Licenses, Intellectual Property Rights and Ownership
(a) When you purchase one of our Products, we grant you the according License as stated in (b) – (d) below, i.e. the non-exclusive, non-transferable right to download, install, and reproduce the Product for the intended use (altogether “use”) without any restriction of territory.
(b) When you purchase one of our Products via MyCommerce, we grant you a “Full License”. A Full License in the meaning of this EULA includes the right to use the Product for an unlimited period of time on an unlimited number of devices, but only on three devices at a time. The Full License can be activated and the Product can be used online and/or offline. You are also entitled to make a backup copy and to use minor software updates (e.g. in form of v1.1, v1.2, v1.3, etc.) (“Updates”), which constitute technical updates, compatibility updates, and minor bug fixes and are also subject to these Terms & EULA. These Updates can be downloaded directly in your Account. You may resell the Product within the European Union or the European Economic Area (Please contact support@incredible-audio.com for technical support). If you do so, your right to use the Product under the Full License terminates. You are obliged to fully delete the Product on all devices and all copies you might have in your possession. You are not entitled to rent the Product to a third party.
(c) When you click on the “Try” button on our website, we grant you a “Trial License”. We grant one Trial License per Account and per Product. A Trial License in the meaning of this EULA includes the right to use the according Product for the purpose of testing it on one device. The Trial License can only be activated and the Product can only be used online. The Trial License terminates 10 days after you have activated it (“Trial Period”). You are also entitled to make a backup copy and use Updates (as defined in (b) above) within the Trial Period, but you are not entitled to resell or rent the Product.
(d) If you are a Business Customer, you may ask to use our Products for a special, non-commercial purpose (e.g. press purposes). You can send your inquiries by e-mail to hello@incredible-audio.com. We will then grant you, at our discretion, a “Not For Resale” License. NFR Licenses in the meaning of this EULA are not for resale and include the right to use the Product only for non-commercial purposes. The NFR License can be activated and the Product can be used online and/or offline. The license period of the NFR License is subject to individual agreement. You are also entitled to make a backup copy and use Updates (as defined in (b) above) within the individually agreed license period, but you are not entitled to resell or rent the Product.
(e) The intellectual property rights behind our Products remain with us. You are not allowed to change the source code of the software of our Products and/or to decompile and/or reverse engineer it, except within the limits permitted by articles 69d and 69e of the German Copyright Act (Urheberrechtsgesetz), or to remove or compromise any logo or trademark in any way.
(3) System Requirements, no guarantee of quality
All our Products have minimum system and hardware requirements, which appear on our website at the according Product page. Before you make a purchase, please check the Product’s compatibility with your system and hardware, so you make sure you are able to use our Products. We take no liability for the compatibility of the Products’ functions with other systems and hardware than those explicitly recommended on our website for each Product. We do not assume any guarantee of quality for our Products.
(4) Upgrades
We are constantly developing our Products. If we develop additional features, a new algorithm or make major changes to the user interface, this results in a new version of a Product (i.e. v2.0, v3.0, v4.0 etc.) and constitutes a new Product (“Upgrade”), which can be purchased as described in section (1) and is subject to a License pursuant to section (2)Licenses, Intellectual Property Rights and Ownership of these Terms & EULA.
(5) Support
(a) If you need support regarding the download and installation of our Products, we offer technical support via a ticketing system provided by ZenDesk, which can be used on our website under www.incredible-audio.com/support, where you can submit a request. You will be asked to enter technical details and your e-mail address subject to our Privacy Policy pursuant to section (7) of these Terms & EULA. After you have submitted the support inquiry, we will receive a ticket and will get in touch with you via the contact information you provided in due course.
(b) Whilst we attempt to provide the best support possible for our Products, we do not guarantee that every technical problem can be solved or that any particular support query can or will be answered to the extent or within a timeframe that will completely satisfy you.
(6) Liability
(a) We are liable for intentional and grossly negligent conduct of our legal representatives and vicarious agents as well as for damages resulting from injury to life, body or health regardless of the degree of fault.
(b) We are further liable for slight negligence on the part of our legal representatives and vicarious agents in the event of impossibility of performance, delay in performance, non-compliance with a guarantee or breach of any other essential contractual obligation. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance you may regularly rely. In these cases, our liability is limited to such contract-typical damages that are foreseeable and typical at the time the contract was concluded.
(c) Any liability on our part beyond the liability pursuant to (a) and (b) of this section (6) of these Terms & EULA is excluded. We are also not liable hereunder by reason of any failure to timely perform our duties hereunder due to an event beyond our reasonable control, including but not limited to acts of God, acts of terrorism, civil unrest, war, fires, floods, power cuts, epidemics.
(d) All limitations of liability according to (a) to (c) of this section (6) of these Terms & EULA also apply in favor of our legal representatives, vicarious agents, and resellers if claims are asserted directly against them.
(e) The limitations of liability resulting from (a) to (c) of this section (6) do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of our Products. The same applies if we and the Customer have reached an agreement on the quality of the Product. Claims under the German Product Liability Act remain unaffected.
(f) Notwithstanding the above, for licenses free of charge we are only liable for intentional and grossly negligent conduct to the extent that this is mandatory by law.
(7) Termination
We are entitled to terminate the EULA if you fail to comply with these Terms & EULA and, where reasonable, we have given you the opportunity to stop any misconduct and it has not stopped. In the event of termination of a license granted free of charge, you are obliged to delete the Product from your device and destroy all copies you might have, which includes the removal of all copies from any server and all computers and terminals on which the Product is installed, as well as the license code.
(8) Data Privacy
When you visit our Website and purchase our Products as well as register to and create an Account in our licensing system, we save and process your personal data and use cookies to the extent permitted under applicable law, as explained in our Privacy Policy, the content of which we hereby also make subject to these Terms & EULA. Please take notice of our Privacy Policy, which is also available for download and print under this link.
(9) Governing Law, Severability, Dispute Resolution
(a) These Terms & EULA are governed by the substantive laws of the Federal Republic of Germany without giving effect to conflict of law principles and/or the United Nations Convention on Contracts for the International Sale of Goods (CISG). For Consumers, this choice of law applies only insofar as the protection granted by mandatory provisions of the law of the state in which the Consumer has its habitual residence is not withdrawn. The courts competent for our registered office have the exclusive jurisdiction over all disputes under and in connection with these Terms & EULA, provided that you are a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch) or if upon the commencement of legal proceedings, you have no place of business or ordinary residence in the Federal Republic of Germany.
(b) If any part of these Terms & EULA is declared invalid or unenforceable, all remaining clauses remain binding.
(c) The EU Commission provides a platform for online dispute resolution on the Internet under the following link: https://ec.europa.eu/consumers/odr. This platform serves as a contact point for out-of-court settlement of disputes arising from online purchase or service contracts in which a Consumer is involved. We are neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board. Please contact us instead via e-mail to business@incredible-audio.com.
(December 2020)