1 These General Terms and Conditions ("GTC") govern the registration, access to and use of the "OKTAV" Platform, which is web-based ("Platform"). These GTC apply both to the use of the free functionalities (if applicable) and to subscriptions. In addition, the data protection provisions (separate document) shall also apply and must be accepted for the registration and use of the Platform.
2 The Provider and operator of the Platform is OKTAV GmbH, a limited liability company based in Linz, Austria ("Provider", imprint see footer).
3 The Platform is aimed at commercial customers ("B2B") and consumers within the meaning of § 1 KSchG (Austrian Consumer Protection Act) ("B2C"). Access to and use of the Platform may be requested by natural or legal persons ("Users", designating both the female and the male form) and require the complete and accurate specifications of the required registration data. Further prerequisite for use is that the present General Terms and Conditions and (separate) data protection provisions are accepted and continuously observed.
4 The creation of a User account requires (at least limited) legal capacity. The existence and scope of the legal capacity shall be assessed in accordance with the law applicable to the User. If necessary, the legal guardians of a person who is not (fully) legally capable must declare their consent to the Provider.
5 Any violation of the GTC or data protection regulations can result in the blocking or deletion of the User account and/or exclusion of the User from the Platform at the discretion of the Provider. Claims of the affected User against the Provider as a result of such a measure are excluded.
6 Supplementary, deviating or conflicting general terms and conditions or other contractual provisions of the User (regardless of their form) shall not become part of the contract and are hereby expressly rejected. Any additional agreements require the written confirmation of the Provider in order to be valid.
7 The Platform is currently available in several countries. Access is only possible from these countries, circumvention (e.g. through a VPN tunnel or similar technical means) is not permitted and can lead to a blocking/deletion of a User.
8 The Platform may be used by creating an account via a login mask of the Platform ("User Account"). The provision of specific data is mandatory for the creation of a User account (e.g. User name, e-mail address). When creating a User account, the User is also requested to choose a User name and password for future access to the Platform. All data assigned to a User account can be deleted on request by sending an email to office@oktav.com.
9 The creation of the User account itself is free of charge; however, some services are only available for a fee.
10 The User is responsible for ensuring that the data provided is complete and correct at all times and must update the data if necessary. In addition, the User is responsible for keeping the password for access to the Platform secret and not disclosing or making it accessible to third parties. The Provider assumes no responsibility or liability in connection with inadequate security of a chosen password, loss of the password, misuse or alike.
11 The User account and/or rights of the User in connection with the Platform are not transferable. The User account may not be used for purposes that violate applicable law. Automatically generated registrations, multiple registrations or spam registrations are inadmissible. The Provider expressly reserves the right to block or delete such User accounts. Claims of the affected User against the Provider as a result of such a measure are excluded.
12 The Platform is an online service for amateur musicians.
13 The Platform allows Users to purchase music scores for a fee by subscription or on demand.
14 The Provider calculates and recommends recommendations based on algorithms that suit the skill and musical taste of a User. Feedback from the User (e.g. on the level of difficulty or music preferences) is also included. User data is collected and evaluated for this purpose. The Provider reserves the right to transmit this User data to cooperation partners (such as music publishers), but this is done in an anonymous form that does not allow any conclusions to be drawn about the individual User (see also the privacy statement).
15 Within the framework of the Platform, further details of the User can also be stored and retrieved at a later point in time, such as: level and progress of an instrument, music preferences and the like.
16 The full functionality of the Platform is available to the Users in the form of a subscription with costs ("Subscription Contract"). Such Subscription Contracts run for one calendar month or one year from conclusion and can be terminated at any time - in the event of termination, the Subscription Contract ends at the end of the selected term, no reimbursement is made by the Provider for any periods not used during this period. The User is aware that in the event of termination, the User Data will be deleted and can no longer be accessed.
17 Subscription Contracts may also be paused (if offered), in which case the obligation to pay and the possibility of access shall end at the end of the calendar month in which the pause was requested. Such breaks are possible up to a maximum of three calendar months. In this case the User data (e.g. progress, music preferences) remain stored for a maximum of twelve months from the beginning of the break.
18 Each Subscription Contract can only be used by one user, a transfer is not permitted unless a special form of subscription (e.g. family subscription, if offered) has been concluded.
19 The use of the functionalities of the Platform (Subscription Contract) is generally subject to a fee; the fees and terms of payment published on the website / Platform or in an offer document apply. This applies in particular to cases in which the prices of the cooperation partners of the Provider for the provision of data material change (increase / decrease) or the costs for license models to which the Provider has to recourse change. In case of doubt, value assurance on the basis of the 2015 Consumer Price Index (CPI) published by Statistik Austria or an index replacing it shall also be agreed for the indicated prices. The prices thus change in line with the changes in the CPI 2015, whereby the respective calendar month of the conclusion of the contract by the User is used as the basis. A possible (also repeated) non-application of an index adjustment by the Provider does not constitute a waiver of the underlying claim.
20 The Provider accepts the means of payment indicated on the Platform and reserves the right to change them subsequently. Payment by credit card, SEPA or Paypal is currently possible. Unless otherwise stated, the published fees include VAT. Invoices can be requested from Users at the address office@oktav.com; for identification and correct assignment, the e-mail address provided by the User during registration must be used for this purpose.
21 Within the framework of the Platform, free services and promotions may be offered which allow Users or certain groups of Users to use certain functionalities of the Platform for a certain period of time free of charge or for a reduced fee ("Promotions"), such as
The Provider expressly reserves the right to decide whether or not to grant such promotions; there is no legal claim to this. Conditions or limitations of such promotions will be disclosed separately.
22 The Provider expressly reserves the right to reject or not accept the User's contract offers (on access to the Platform or conclusion of a Subscription Contract) without stating reasons and informs the User accordingly. Furthermore, the Provider reserves the right to withdraw from the contract in accordance with § 918 of the Austrian Civil Code (ABGB), even after the conclusion of the contract, if the User does not make a full payment even after setting a reasonable grace period, or if an already made transfer is reversed, or if the payment is not (completely) received by the Provider for other reasons.
23 Users who are consumers within the meaning of § 1 of the Austrian Consumer Protection Act (KSchG) have the right to revoke a concluded contract within fourteen (14) days without stating reasons or to withdraw from their contractual declaration (§ 11 of the Austrian Consumer Protection Act (FAGG)). Users who are not consumers within the meaning of § 1 of the Austrian Consumer Protection Act are not entitled to this right of revocation. The revocation period begins on the day of the contract declaration.
24 In order to exercise the right of revocation, the User shall inform the Provider of his decision to revoke the contract by means of a clear declaration (e.g. by letter or e-mail message). The sample revocation form attached in the appendix may be used for this purpose, but this is not mandatory.
25 In order to comply with the withdrawal period, it is sufficient for the notification of the exercise of the right of withdrawal to be sent before the expiry of the withdrawal period.
26 If the contract is revoked, the Provider shall reimburse the User for all payments received immediately and at the latest within fourteen (14) days of receipt of the revocation notice. The same means of payment used by the User in the original transaction shall be used for this repayment, unless expressly agreed otherwise; in no event shall any fees be charged for this repayment.
Rights to the Platform and its contents
27 The Provider grants the User a limited, personal, non-exclusive, non-transferable or non-licensable license to use the Platform, which may be revoked at any time, in accordance with these GTC and the data protection provisions.
28 The Platform contains elements and content which are or may be protected in favour of the Provider or his cooperation partners (e.g. copyright/service protection law, trademark law, patent law, utility model law, design law, competition law or other standards). The Provider as well as his cooperation partners expressly reserve all rights thereto. The use of these elements and contents (in whole or in part), and in particular their duplication or "reverse engineering", beyond the usual and necessary use of the Platform by the User, is not permitted without the prior written consent of the Provider. This applies in particular, but not exclusively, to the software (with the exception of any open source elements), know-how, brands, names and trademarks, content, layout, design and interface of the website and the Platform, databases, videos, photographs, texts, sheet music and graphics. In particular, the User is not permitted to use the Platform or elements contained therein (in particular, but not exclusively, music scores) for the creation of his own database or similar uses.
29 The Platform allows Users to access the Platform and use sheet music in digital form. Offline storage (download) of these sheet music files is not possible within the framework of a Subscription Contract and is expressly prohibited.
30 Under the Subscriptino Contract and Platform Access, Users will also be able to print a predefined number of Sheet Music per calendar month; the cost of such printouts will be included in the Subscription Contract fee and will therefore be taken into account by any applicable legal and/or contractual requirements. These printouts are subject to the same terms of use as the online content, in particular they may only be used by the User for his own purposes and may not be passed on.
31 The sheet music available online may - without the prior consent of the Provider - be used by the User exclusively for his own and non-commercial purposes and in particular may not be passed on to third parties, regardless of whether such a passing on takes place against payment or free of charge.
32 The Provider grants the User the limited, non-licensable and revocable right to use the sheet music for his own purposes, subject to full payment of the fees.
33 The Platform is made available in its present state, as seen ("as is"). The Provider assumes no warranty or liability for (i) any particular characteristic, suitability or suitability of the Platform, (ii) the uninterrupted or error-free availability of the Platform, the possibility of access or interaction, (iii) transmission, hardware, software or network errors, (iv) lost, damaged, incomplete, modified or delayed transmission of data, (v) attacks or access by unauthorized third parties within the Platform or from outside.
34 The Provider is not obligated to technically further develop the Platform or to extend the services offered under the Platform.
35 In particular, the Provider does not assume any guarantee or responsibility that certain musical notes are or remain available within the framework of the Platform and/or that they are equally available in all geographical areas. In particular, it may become necessary to remove certain music notes from the Platform or to restrict access to them due to a change in the legal situation, the licenses acquired by the Provider or expiry of the license period. The User may not assert any claims against the Provider (in particular not for a reduction of the fee or reimbursement of amounts already paid).
36 The Provider reserves the right to interrupt the operation of the Platform at any time and without prior notice, in whole or in part (e.g. for maintenance work, updates, etc.) or to discontinue it (e.g. as a result of a temporary or permanent interruption of data delivery by third parties to the Provider). The User may not assert any rights or claims whatsoever against the Provider as a result of a suspension. The same applies to interruptions, provided that the provision of the services is not significantly impaired.
37 The Provider shall not be liable for the impossibility or delay of performance due to force majeure. This includes circumstances which were unforeseeable and unavoidable for the Provider and which do not lie within the Provider's sphere of influence, such as in particular, but not exclusively, natural disasters, warlike/terrorist activities, industrial disputes, lockouts, attacks on the Platform, servers or hardware/software, interruptions in energy supply or non-supply by cooperation partners. The Provider shall be released from his obligation to perform for the duration of the event of force majeure and shall only be obliged to render performance after the event of force majeure has completely ceased to exist.
38 Insofar as the liability of the Provider according to these GTC is not completely excluded and insofar as legally permissible, the Provider shall only be liable for intent and gross negligence and only for typical and foreseeable as well as only for direct damages.
39 The liability of the Provider for slight negligence, consequential damages, indirect damages or third-party damages, immaterial damages as well as for lost profits is excluded.
40 Insofar as the liability of the Provider is effectively excluded or limited, this shall also apply to any personal liability of his cooperation partners as well as their organs, employees, representatives, agents and vicarious agents of the Provider.
41 Users have the possibility to upload their own content to the Platform and e.g. to create playlists ("User-Content"). The User is aware that this User Content (or parts of it, according to the settings of the Platform) can be viewed by other Users and that other Users can follow playlists. This makes User Content potentially accessible to an unlimited number of people.
42 The Provider merely provides a forum for such User Content, the responsibility for the User Content (including its title/name, description, comments and content as well as the related information) lies exclusively with the corresponding User. The Provider does not make the User Content his own and assumes no responsibility, warranty or liability for its legality, accuracy, completeness, truthfulness or freedom from rights of third parties. User content in particular is not subject to any content or legal preliminary examination, sorting or categorization by the Provider.
43. User Content (including its title/designation, description, comments and content as well as the related information) may at no time violate applicable law or morality and in particular may not violate any administrative or criminal law, pornographic, harmful to minors, racist, content that enhances violence, shocks, is immoral, offensive or similar and does not threaten, disparage, expose, insult and/or falsely, inappropriately and/or mislead any User, person, group, religion, company, brand or product or the like.
44 The Provider is not obliged to check User Content for its legality, but reserves the right, upon notification by a third party claiming rights to User Content and/or asserting a (legal) violation, to immediately remove or block the corresponding User Content (as well as core violations) in such a way that it is temporarily or permanently no longer perceptible within the Platform ("notice-and-takedown"). The Provider is not obliged to check the authorization of the third party and/or the alleged (legal) violation. In connection with such a measure, the User is not entitled to any claims whatsoever (in particular, but not exclusively, for damages) against the Provider.
45 The User guarantees, assures and warrants that:
46 The User undertakes to fully indemnify and hold harmless the Provider, his cooperation partners as well as the organs, employees, representatives, agents and/or vicarious agents of the Provider and the cooperation partners with regard to all claims of third parties which are raised in direct or indirect connection with User Content (including its title/description, description and content) or its transmission, provision or use by the Provider, other Users or legal successors / licensees against the Provider and/or cooperation partners (or their organs, employees, representatives, agents or vicarious agents) in direct or indirect connection with User Content. This also includes all associated costs (e.g. the appropriate legal defense).
47 User Content entered by the User on the Platform may be re-used by the Provider, but the User shall of course remain the author (where applicable) and owner of the User Content. By transmitting / making available the User grants the Provider free of charge the non-exclusive right, unlimited in time, space and content, to use this User Content for all present and future known types of use in all media in any type of procedure and number and to grant limited rights to third parties (e.g. by way of a sub-licence). This includes, but is not limited to, the right to reproduce, store, distribute, rent, loan, display, transmit, publicly reproduce and perform User Content (and/or parts thereof), make it available to the public (wirelessly or wiredly), connect it to works of the same or a different kind (synchronize it), edit, adapt and shorten it comprehensively, share and modify it and use it in the aforementioned ways. It includes in particular the use to improve the Platform.
48 The Provider further permits Users to make their own compositions available within the framework of the Platform. For this, these Users are entitled to a fee in accordance with the Terms and Conditions specified within the framework of the Platform and in the amount specified - details are specified in a separate agreement between the Provider and the User. It is stated that the Provider is not obliged to offer Users such an agreement and/or to allow the provision of own compositions.
49 It is expressly stated that these compositions represent User Content and are therefore subject in particular to the provisions of points 41 to 47 of the GTC.
50 The User gives his express consent pursuant to § 107 of the Austrian Telecommunications Act (TKG) to regularly receive information (e.g. on campaigns or updates) and advertising from the Provider, also in electronic form (e-mail). This consent can be revoked at any time with effect for the future (office@oktav.com).
51 The Platform may contain links to other websites, advertising (e.g. in the form of banners or advertisements), offers or the like from third parties ("Third Party Offers") that do not originate from the Provider and are not controlled by the Provider. The Provider does not adopt the contents of the corresponding third-party offers as his own, does not assume any responsibility in connection with such third-party offers and gives no guarantee for the services, products or information offered or for the secure/hazard-free calling up or running of the website accessible via the link. The User is solely responsible for calling up and making use of third party offers and does so at his own risk.
52 These GTC and data protection provisions are subject to the law of the Republic of Austria to the exclusion of the conflict-of-law rules of private international law. The exclusive place of jurisdiction in connection with all legal disputes arising directly or indirectly from these General Terms and Conditions or data protection provisions as well as the Platform or Software and their use shall be the court of competent jurisdiction for 4020 Linz. This shall apply subject to statutory restrictions, in particular applicable consumer protection provisions.
53 The Provider reserves the right to amend the GTC and data protection provisions and to make the current version available on the Platform and to inform the Users thereof at his discretion. The continued use of the Platform is then based on the amended version of the GTC / data protection provisions. However, Users are free to deactivate or delete their User account if the User does not agree with the validity of the amended GTC / data protection provisions.
54 The Provider reserves the right to transfer the rights and obligations arising from the contractual relationship with the Users in whole or in part to third parties.
55 A violation (or a corresponding suspicion) of the rights and/or rights of third parties (in particular, but not exclusively, intellectual property rights) listed in these General Terms and Conditions is to be addressed by the User to the address office@oktav.com. Ideally, as many details as possible should be provided for identification and possible further processing.
(If you want to cancel the contract, please fill out this form and send it back)
To
OKTAV GmbH
FN 484693i
Südtirolerstrasse 5
4020 Linz
office@oktav.com
I hereby (*) cancel the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following services (*)
Ordered on (*)/received on (*)
Name(s) of consumer(s)
Address of consumer(s)
Signature of consumer(s) (only for paper communication)
Date of the
(*) Indicate what is not applicable