Ableton Cloud Terms of Service

IMPORTANT:

PLEASE CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT

PLEASE NOTE THAT THIS DOCUMENT IS INTENDED TO APPLY TO ALL USERS, THOUGH SEVERAL SECTIONS ARE LOCALIZED FOR EUROPE IN ORDER TO COMPLY WITH LOCAL LAWS AND SUCH SECTIONS SHALL ONLY APPLY TO THOSE CUSTOMERS WHOSE PLACE OF RESIDENCY IS IN EUROPE

Preamble

Some Ableton Products include the ability to store and share a limited number of Musical Assets in the Ableton Cloud between Your Ableton Products. These Terms of Service (the “Terms”) are a legal agreement between You (either in Your individual capacity, or on behalf of an entity) (“You”) and Ableton in order to give You access to Ableton as set forth in these Terms. By ticking the applicable check-box and/or using Ableton Cloud, You acknowledge that You have read and understood these Terms, and agree to be bound by them. If You are accepting these Terms on behalf of a corporation or other entity, You declare that You are authorized to do so. Unless otherwise agreed in writing, the use of Ableton Cloud is free of charge. Nothing in these Terms shall create or imply any exclusive relationship between parties, nor any partnership, joint venture, employment, or agency. In addition to these Terms, additional terms and conditions may apply to Your use of Ableton Cloud, such as the Ableton General Terms and Conditions, or other terms as applicable.

1. Definitions

As used in these Terms, capitalized terms shall have the following meanings:

The use herein of the plural shall include the singular and vice versa. Additional terms may be defined throughout these Terms.

  1. "Ableton" means Ableton AG, Schönhauser Allee 6-7, 10119 Berlin, Germany and any Ableton Affiliate (for contact information please see: www.ableton.com/contact-us/)

  2. The term "Ableton Affiliate" means any entity affiliated with or controlled by Ableton AG, its affiliates and its corporate group, which includes, but is not limited to, Ableton AG’s majority-owned subsidiaries, any parent company having a majority-owned interest in such, and such parent's majority-owned subsidiaries.means any entity affiliated with or controlled by Ableton AG, its affiliates and its corporate group, which includes, but is not limited to, Ableton AG’s majority-owned subsidiaries, any parent company having a majority-owned interest in such, and such parent's majority-owned subsidiaries.

  3. The term "Ableton Cloud" means an online storage provided by Ableton for the purpose of allowing You to store and share a limited number of Musical Assets.

  4. The term "Ableton-Products" means all products and online resources developed, manufactured, licensed and/or supplied by Ableton.

  5. The term "Authorized Third-Parties" means any third-party or third-party service provider that is authorized by Ableton to provide services in connection with Ableton Cloud.

  6. The term "Consumer" means You as a natural person who uses Ableton Cloud for a purpose that can be regarded as being outside Your trade or profession.

  7. The term "Musical Asset"means musical compositions, projects, drafts or other musical or sound material created with Ableton Products, that may contain audio recordings, musical arrangements, compositions, midi-files, presets, racks, software preferences, data and other content.

  8. The term "Third-Party Services" means applications or services developed, manufactured, licensed or supplied by third-parties, which may be utilized or included in Ableton Cloud.

  9. The term "User Account" means the online account required for the registration and authorization of certain Ableton Products and use of Ableton Cloud (for details please see: https://www.ableton.com/signup)

2. Ableton Cloud

  1. Ableton Cloud is only available to You if You are aged 16 years or older (or the minimum age in Your jurisdiction).

  2. The number of Musical Assets You can share via or store in Ableton Cloud is limited, but the minimum amount at all time is five Musical Assets.

  3. The number and size of Musical Assets is subject to change at the discretion of Ableton.

  4. In order to use Ableton Cloud, You must register with Ableton and create a User Account. You are responsible for protecting Your login credentials and maintaining the security of Your User Account. The transfer or assignment of the User Account is prohibited without the express consent of Ableton. For further information, You can visit Ableton’s website at www.ableton.com/support.

  5. Ableton Cloud does not include connectivity with the internet or between Your devices; You are responsible for providing the required connectivity.

  6. By using Ableton Cloud You acknowledge that Ableton Cloud may not be available at any given time or in Your particular location to Your satisfaction and that You are responsible for Your compliance with any local laws that may apply to Your use of Ableton Cloud. You are solely responsible for backing up Your Musical Assets (including all content contained therein). You understand that any Musical Assets You store or use on Ableton Cloud may be subject to inadvertent damage, corruption, loss or removal, and Ableton shall not be responsible for any such damage, corruption, loss or removal.

3. Ownership/Intellectual Property Rights

  1. By using Ableton Cloud, You do not acquire any ownership rights to Ableton Cloud. Ableton Cloud is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The rights to use Ableton Cloud as Musical Asset out in these Terms are licensed, not sold, to You by Ableton.

  2. Trademarks contained in Ableton Cloud are trademarks or registered trademarks of Ableton AG or Ableton Affiliates in Germany, the United States and/or other countries.

  3. NB.: THIS CLAUSE DOES NOT APPLY IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    1. As between You and Ableton, Ableton is the owner of all right, title and interest in and to the Ableton Cloud (including all copyrights, trademarks and patents).

    2. You shall not, at any time during or after the effective term of these Terms, dispute or contest, directly or indirectly, Ableton’s exclusive right and title to Ableton Cloud or the validity thereof.

    3. You shall not attempt to develop any service that contains the “look and feel” of Ableton Cloud or is otherwise derivative thereof.

4. Grant of Rights

  1. Under the condition that

    1. You have registered and are holding a valid User Account; and

    2. You have accepted these Terms,
    Ableton grants to You a personal, limited, non-exclusive, revocable license to use Ableton Cloud in accordance with these Terms.

  2. When you use Ableton Cloud, You may provide us with Your Musical Assets, which remain owned by You. These Terms do not give Ableton or its Authorized Third-Parties any rights in your Musical Assets except for the limited rights needed to offer the Ableton Cloud services to you. We need your permission to do things like storing, backuping, and distributing Your Musical Assets when you ask us to. You agree to allow Ableton and its Authorized Third-Parties to do each of these things to Your Musical Assets, and to make any other non-public use of your Musical Assets as is necessary as we provide You with the Ableton Cloud Services.

5. Representations and Warranties

You represent and warrant:

  1. that any and all Musical Assets that You store in any manner on the Ableton Cloud, including, any contents and materials contained in the Musical Assets, do not infringe any third-party rights (including any copyrights or other intellectual property rights), and do not violate any third-party rights and/or any laws;

  2. that You have full legal capacity to grant the rights under these Terms without restriction of any third-party and that You are the owner of any and all materials contained in Your Musical Assets that You store in any manner on the Ableton Cloud or that You have all necessary rights and licenses to use such materials; and

  3. that You have not transferred such rights to any third-party.

6. Restrictions

You are not permitted

  1. to provide Ableton Cloud or parts of it to third-parties for their use without Ableton’s consent;

  2. to use Ableton Cloud for the transmission, dissemination or expression of illegal or immoral contents;

  3. to send or receive any legally prohibited, unsolicited information, objects or items via Ableton Cloud; or

  4. to send or receive excessive amounts of data beyond a reasonable use of Ableton Cloud.

7. Privacy

Ableton may process information from Your use of Ableton Cloud under applicable data protection and privacy regulations. Further information about Ableton’s data processing and privacy policies can be found at: www.ableton.com/privacy-policy.


8. DISCLAIMER OF WARRANTIES FOR FREE SERVICES

  1. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    DISCLAIMER OF WARRANTIES FOR FREE SERVICES: Subject to Section 9 I (1) of these Terms, the liability in connection with Ableton Cloud is excluded except for intent or gross negligence. In the event of any other kind of negligence, Ableton shall only be liable in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper performance of the contract and the observance of which You may regularly rely on, as well as in the event of damage resulting from injury to life, limb or health. A claim for damages arising from a legal defect or a defect in Ableton Cloud is only permissible If Ableton fraudulently conceals such defect. Subject to any statutory claims You may have under law (which shall not be affected), Ableton is not obliged to provide any additional technical support to You.

  2. IF YOUR USUAL PLACE OF RESIDENCE IS OUTSIDE EUROPE

    DISCLAIMER OF WARRANTIES: FOR PURPOSES OF THIS SUBSECTION II ONLY, THE TERM “ABLETON” INCLUDES ABLETON AND ABLETON’S LICENSORS (EXCLUDING YOU), AND OTHER PARTNERS FOR ABLETON CLOUD. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF ABLETON CLOUD IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ABLETON CLOUD IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND ABLETON HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO ABLETON CLOUD, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. ABLETON DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF ABLETON CLOUD, THAT THE FUNCTIONS CONTAINED IN ABLETON CLOUD WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF ABLETON CLOUD WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN ABLETON CLOUD WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ABLETON OR AN ABLETON AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

9. LIMITATION OF LIABILITY

  1. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    Limitation of Liability:

    1. Ableton shall only be liable without restriction according to the statutory provisions for damages caused to You by the intentional or grossly negligent conduct of Ableton or its agents, with the exception of liability under the Product Liability Act [ProdHaftG] or comparable laws in other jurisdictions that may apply and due to injury to life, body or health

    2. Otherwise, the liability of Ableton for damage claims – for whatever legal reason – is limited in accordance with the following conditions, unless otherwise provided by an explicit guarantee of Ableton:

      1. For damages caused by slight negligence, Ableton is only liable insofar as it causes damage to contractual obligations (“Cardinal Obligations”). Cardinal Obligations are those contractual obligations which must be fulfilled in order to ensure orderly implementation of the contract and for which observance You should be able to trust. Insofar as Ableton is responsible for simple negligence hereafter, the liability of Ableton is limited to the typically foreseeable losses.
      2. The liability of the Ableton for damages caused by loss of data and/or programs lost by slight negligence is limited to the typical cost of restoration, which would have been incurred in case of regular and appropriate data backup and data protection by You.
      3. The provisions of the above paragraph apply correspondingly to the limitation of damages for unsuccessful expenses (§ 284 of the German Civil Code [BGB]).

    3. The above liability restrictions shall also apply to agents of Ableton.

  2. IF YOU ACQUIRED THE ACCESS TO ABLETON CLOUD OUTSIDE EUROPE

    LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ABLETON OR ITS LICENSORS (EXCLUDING YOU) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE ABLETON CLOUD OR DEFECT IN OR CAUSED BY ABLETON CLOUD, INCLUDING BUT NOT LIMITED TO COMPROMISING THE SECURITY OF YOUR COMPUTER, OPERATING SYSTEM OR FILES, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF ABLETON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, ABLETON’S ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS SHALL BE LIMITED TO $100. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN PART OR WHOLE.

10. Indemnification

NB: THIS CLAUSE DOES NOT APPLY IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

You agree to indemnify, defend and hold harmless Ableton and its affiliates and their respective officers, employees, directors, agents, licensees (excluding You), sublicensees (excluding You), licensors (excluding You), successors and assigns from and against any and all liability, costs, losses, damages, and expenses (including reasonable attorneys’ fees and expenses) arising out of any claim, suit, or cause of action relating to and/or arising from (a) Your breach of any term of these Terms; (b) Your violation of any rights of any third-party; or (c) Your use or misuse of Ableton Cloud. Your indemnification obligations set forth in the immediately preceding sentence shall survive the termination of these Terms.


11. Third-Party Services

  1. Ableton Cloud may now or in the future utilize or include Third-Party Services. The terms and conditions of Your use of Third-Party Services, if any are utilized or included in Ableton Cloud, can be found on www.ableton.com. Your use of such Third-Party Services is governed by their respective terms and conditions. By accepting these Terms, You are also accepting the additional terms and conditions, if any, set forth therein. You receive a non-exclusive, non-transferable right to use the Third-Party Services in accordance with these Terms and the additional terms for such Third-Party Services only under the condition subsequent that You have accepted these Terms. The license will cease automatically with effect for the future when these Terms terminate.

  2. Ableton expressly disclaims any all warranties under these Terms in connection with the Third-Party Services, and shall have no liability in connection therewith.

  3. Ableton is not liable for costs arising out of services that are not provided by Ableton.

  4. Rights and obligations under any applicable Open Source license remain unaffected by these Terms.

    5. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE: All set forth in this Section 11 is subject to Section 9 (1) of these Terms.


12. Term

  1. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    2. You may terminate these Terms at any time by ceasing Your use of Ableton Cloud or deleting Your User Account.

    Ableton may terminate these Terms with 6-day notice at any time.


  2. IF YOUR USUAL PLACE OF RESIDENCE IS OUTSIDE EUROPE

    3. You may terminate these Terms at any time by permanently ceasing Your use of Ableton Cloud or deleting Your User Account. Ableton may at any time, without prior notice, immediately terminate these Terms, Your User Account and/or Your access to Ableton Cloud: (a) if You fail to comply with any term or condition of these Terms, (b) pursuant to a request and/or order from law enforcement, a judicial body, or other government agency; (c) where provision of Ableton Cloud to You is or may become unlawful, or (d) if Ableton decides to discontinue providing Ableton Cloud (provided, however, that with regard to any discontinuation of Ableton Cloud, Ableton will provide You with thirty (30) days‘ prior written notice thereof via e-mail to the e-mail address associated with Your User Account). You agree upon any termination to cease Your use of Ableton Cloud immediately.


13. Effects of Termination

  1. Upon termination of these Terms or Your User Account, You will no longer have access to Ableton Cloud, including, but not limited any Musical Assets or other materials You may have stored in Ableton Cloud. Any contents and materials You may have stored in Ableton Cloud will be deleted by Ableton.

  2. Sections 5, 8, 9, 10, 13, 14 and 15 of these Terms shall survive upon termination.

14. Export Law Assurances

Your use of Ableton Cloud and Ableton Products may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws. For example, if applicable, You may not export or re-export the Ableton Product except as authorized by United States law and the laws of the jurisdiction in which the Ableton Products was obtained; in particular, but without limitation, the Ableton Product may not be exported or re-exported (a) into or to a nation or a resident of any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By installing or using any component of the Ableton Product, You represent and warrant that You are not located in, under control of, or a national or resident of any such country or on any such list. You further agree not to upload to Ableton Cloud any data or software that is: (a) subject to International Traffic in Arms Regulations; or (b) that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software and source code, without first obtaining that authorization. This assurance and commitment shall survive termination of these Terms.


15. Governing Law/Place of Performance and Jurisdiction/Dispute Resolution

  1. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    1. These Terms are governed by the laws of the Federal Republic of Germany. If You are a Consumer this choice of law applies to You, but only insofar as the protection granted by mandatory provisions of the laws of the country, in which You have Your habitual residence, is not withdrawn thereby. The choice of law furthermore only applies to You insofar as no other law is chosen for certain provisions under these Terms. The provisions of the CISG and the conflict of law rules are not applicable.

    2. The place of performance is Berlin, Germany.

    3. Exclusive jurisdiction for all legal disputes arising from or in connection with these Terms is Berlin, if You are a merchant according to § 14 the German Civil Code [BGB]. The same applies, if You have no general jurisdiction in Germany, or if your domicile or habitual residence are not known at the time the action is brought.

    4. By agreeing to these Terms, in the event of any claim You may have arising from or related to Ableton Cloud or these Terms You hereby agree to waive any right to participate in any type of law suit brought and/or maintained as a class action or similar in nature to a class action.

  2. IF YOUR USUAL PLACE OF RESIDENCE IS OUTSIDE EUROPE

    3. Governing Law/Dispute Resolution: These Terms will be governed by and construed in accordance with the Federal and State laws of the State of New York and of the United States of America. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. By agreeing to these Terms, in the event of any claim You may have arising from or related to Ableton Cloud or these Terms You agree to the exclusive personal and subject matter jurisdiction of the courts located within Manhattan, New York, U.S.A. for making and resolving any such claims, Ableton reserves the right to make any claim against You and seek and be granted any legal or equitable remedy against You in any court anywhere in the world.

    BY AGREEING TO THESE TERMS, YOU HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN ANY TYPE OF LAWSUIT BROUGHT AND/OR MAINTAINED AS A CLASS ACTION.

16. General

  1. IF YOUR USUAL PLACE OF RESIDENCE IS IN EUROPE

    1. All rights not explicitly granted in these Terms are reserved.

    2. The failure or delay of Ableton to exercise any of its rights under these Terms or upon any breach of these Terms shall not be deemed a waiver of those rights or of the breach.

  2. IF YOUR USUAL PLACE OF RESIDENCE IS OUTSIDE EUROPE

    3. These Terms constitute the complete and exclusive agreement between Ableton and You with respect to the subject matter hereof and supersedes all proposals, representations, understandings, and prior agreements, whether oral or written, and all other related communication between the parties.

    Ableton may modify these Terms at any time and in its sole discretion, including as needed to reflect changes in Ableton’s services or in response to any change in applicable laws. If any modification to these Terms materially and adversely affects Your use of Ableton Cloud, Ableton will use reasonable efforts to provide You with prior written notice of such modification by sending an e-mail to the e-mail address associated with Your User Account. By continuing to access or use Ableton Cloud after the modification comes into effect, You agree to be bound by these Terms, as modified. If at any time You no longer agree to be bound by these Terms, You should immediately and permanently cease all use of Ableton Cloud and the Ableton Products.

    All rights not explicitly granted in these Terms are reserved. Any clause in these Terms, which is found to be invalid or unenforceable shall be deemed deleted and the rest of these Terms shall remain unaffected and an enforceable term will be substituted reflecting the original intention of the parties as nearly as possible.

    The failure or delay of Ableton to exercise any of its rights under these Terms or upon any breach of these Terms shall not be deemed a waiver of those rights or of the breach.