General Terms and Conditions (GTC)

of fun.music IT GmbH

Status 30.03.2018 

  1. Scope and general provisions
    1. fun.music IT GmbH (hereinafter called ' fun.music IT GmbH', ' we' or ' us') is a software company offering software solutions in the field of music both on the website www.tonestro.com or application-based (hereinafter called ' tonestro'). ' tonestro' is a service that enables its members to have pieces of music analysed and evaluated, even those played by one’s self.
    2. Only these GTCs and the conditions of use and the declaration of consent and privacy statement of fun.music IT GmbH apply to the contractual relationship between  fun.music IT GmbH and the Contracting Party, unless otherwise agreed individually.
    3. The Contracting Party demonstrates his/her agreement with the present terms and conditions because of the registration / registration through ' tonestro'.
    4. ' tonestro' is expressly intended for the private use by individuals. Non-private use is expressly forbidden without the express written consent of fun.music IT GmbH and results in the immediate blocking of the customer's account.
    5. To log in / register with “tonestro”, the Contracting Party must be at least 15 years of age. 
  1. Conclusion of the contract, registration, and cancellation
    1. A customer account is required for the use of ' tonestro'. The Contracting Party must register for this by providing his personal details on the website www.tonestro.com or via the ' tonestro' app. Any changes shall be communicated to us immediately.
    2. We are entitled to check the identity of the Contracting Party, for example, by requesting to examine a suitable official photo ID and may delete any non-eligible persons, if necessary.
    3. The Contracting Party is obliged to maintain confidentiality about his/her access data towards unauthorised third parties. The user name and password, in particular, are to be kept in such a manner that access to these data by unauthorised third parties is impossible. If the Contracting Party discovers that unauthorised third parties are aware of the access data, he/she shall be required to change his password immediately and to inform us of this fact.
    4. The Contracting Party is obliged not to use ' tonestro' in an abusive or fraudulent manner, and not to use, obtain, transmit or distribute any unlawful or immoral content. In addition, ' tonestro' may not be used in a way that is able to interrupt, damage or otherwise affect ' tonestro' or the access to it.
    5. We are authorised to block the customer’s account and access to ' tonestro' temporarily or permanently; this especially applies in the event of unlawful use and / or if the use violates the contractual agreement. Such a block is to limit the allegedly infringing content if it is technically possible and reasonable. The Contracting Party must immediately be informed about the blockage along with the reasons for this and asked to remove the allegedly unlawful content or to make their case as to its legality and to prove it, if necessary.
    6. The Contracting Party may terminate his/her ' tonestro' subscription at any time through the customer account effective the last day of each month. “tonestro” remains accessible without restrictions until the expiration of the monthly billing cycle. The customer account shall subsequently be deleted along with all the content. There will be no refunds and / or credits for not fully used months or purchased songs.
  1. Prices and payment methods
    1. The indicated prices are in euros. These prices contain the legal value added tax (VAT). Any copyright fees are already included in the indicated prices, unless otherwise agreed.
    2. We reserve the right to use different remuneration models for other offered plans and/or services. The current and exact charges and conditions are specified in a separate price list.
    3. The incurred charge is immediately due and payable in full. The amount will be collected in full using the payment method selected at the time of registration.
  1. Compensation for damages and liability
    • We shall only be held liable for intent and gross negligence if we are responsible for a loss/damage.
    • We are not liable for direct, indirect damages or lost profits; our liability is limited to the actual contract value. Any further liability is excluded.
    • We assume no liability for topicality, accuracy, completeness or the content of the provided information. Any liability for disadvantages from the non-permanent availability of the ' tonestro' app is excluded by ' tonestro'. We are not liable for loss of data because of inadequate data security measures by the Contracting Party.
    • The burden of proof according to § 1298 ABGB is excluded.
    • A claim for damages against us can only be asserted within six months of when the entitled beneficiary became aware of the damage, but no later than within three years of enforcing the occurrence justifying the claim for damages.
    • If the party is a consumer, compensation shall be paid according to the mandatory legal requirements.
    • The right to dispute the contract due to a reduction of more than half pursuant to § 934 ABGB (laesio enormis) is excluded. This does not apply if the Contracting Party is a consumer. 
  1. Copyright
    • The pieces of music acquired by the Contracting Party via ' tonestro' are copyright-protected.  fun.music IT GmbH does not provide the Contracting Party with any property rights in such music. The Contracting Party is granted the simple, non-exclusive and non-transferable right to use the acquired piece of music for his/her exclusive, private use in accordance with the valid copyright provisions under the copyright law.
    • No rights, entitlements or titles are transferred to the Contracting Party apart from the rights granted under 5.1. In any case, changing the music in any way whatever, copying it or generally reproducing it for third parties, making it publicly available, or using it for non-private purposes is not permitted.
    • We reserve the right to change the usage of the musical pieces temporarily or permanently, or to interrupt or completely discontinue them temporarily or permanently. In addition, we are entitled to delete individual pieces of music from the profile of the Contracting Party, provided there is an important reason for this, which would at least also include legal uncertainties about rights violations.
    • If a Contracting Party uploads his/her own pieces of music on ' tonestro', then the Contracting Party guarantees that this does not violate any copyrights or other third party’s industrial property rights. If we should be subjected to third party claims due to such a violation, the Contracting Party holds us fully free and harmless.
    • For this purpose, the Contracting Party grants us to a non-exclusive, transferable, sub-licensable, fee-free, world-wide right to use its content, such as videos or sound recordings, which the Contracting Party uploads and / or posts on ' tonestro'. This right ends as soon as the Contracting Party deletes this content from ' tonestro'.
  1. Special provision for software
    • By downloading and using our app ' tonestro', the Contracting Party agrees that the software is occasionally updated, once a newer version or feature is available. This may make it possible that ' tonestro' is not available / usable in the short term.
    • We grant the Contracting Party the private, worldwide, royalty-free, non-transferable and non-exclusive right to use the software / app provided by us in the framework of the ' tonestro'. The granted use only serves to facilitate ' tonestro'. The Contracting Party is not entitled to change and/or edit, reproduce, distribute, sell or use any part of it for other non-private purposes. The Contracting Party is not entitled to reverse-engineer the software and / or to extract the source code. Exceptions to this only apply if an explicit and written permission from us is in existence or mandatory legal provisions provide for this.
  1. Contract language
    • German is exclusively applicable as the contract language.
  1. Agreed place of performance and court of jurisdiction
    • Place of performance is the domicile of fun.music IT GmbH.
    • Court of jurisdiction for disputes arising out of or in connection with the contract between the Contracting Party and us or with these terms and conditions is the competent court at the domicile of fun.music IT GmbH; the legally provided places of jurisdiction for consumers are the exception to this.
  1. Choice of law
    • Austrian law under exclusion of the collision and reference standards and the provisions of the CISG are exclusively applicable.
    • For consumers, this choice of law applies except for the mandatory legal provisions of the habitual residence of the consumer(s).
  1. Written form
    • Changes and additions to these general terms and conditions require written form; this also applies to ancillary agreements and subsequent contractual amendments, as well as the departure from the written form requirement.
  1. Severability clause
    • If a provision in the General Terms and Conditions should be fully or partly ineffective or become ineffective, then this does not otherwise affect the validity of the other provisions. The invalid provision shall be replaced by a valid provision that comes closest financially and legally to the provision that is to be replaced.