|� 1 Contract Conclusion 1.1
CAISHEN LLC offers to provide its customers with music titles in the form of MIDIFILES or AUDIO PLAYBACK, the formats being MF-0 and GM, GS (if available) , XG (if available) or Audio MP3 produced by samplers and synthesizers. As soon as the customer transmits the order, he/she orders the selected MIDIFILES / AUDIO PLAYBACK pursuant to the contractual terms and conditions set out below. This shall also apply to orders by phone or conventional mail.
Please read these terms and conditions carefully before going ahead with the order. By ordering MIDIFILES / AUDIO PLAYBACK offered by CAISHEN LLC the customer declares that he/she has read, and agrees to, the General Terms and Conditions.
The presentations and descriptions of MIDIFILES / AUDIO PLAYBACK on the internet and in product specifications are no warranted qualities. The customer is aware of the technical options and conditions of using MIDIFILES / AUDIO PLAYBACK. On request CAISHEN LLC will communicate additional technical details.
As regards the musical rights to the MIDIFILES / AUDIO PLAYBACK, CAISHEN LLC pays the royalties due to its providers.
� 2 Scope of Validity
The business relations between CAISHEN LLC and the ordering party shall be exclusively governed by the following General Term and Conditions as last amended at the time when the order is placed. CAISHEN LLC will not accept any different conditions on the part of the ordering party except if CAISHEN LLC has expressly consented to their applicability in writing.
� 3 Warranty
CAISHEN LLC warrants that the MIDIFILES / AUDIO PLAYBACK can be used on all computers/players that support the standard MIDI formats MF-0 and MF-1 and the sound formats GM, GS or XG or Audio MP3. CAISHEN LLC does not warrant for the suitability of the MIDIFILES / AUDIO PLAYBACK for the purposes envisaged by the customer. Moreover, CAISHEN LLC warrants that the MIDIFILES / AUDIO PLAYBACK originally sent from CAISHEN LLC�s computer to the internet have no program faults. As regards any transmission faults on the internet, CAISHEN LLC does not assume any warranty.
CAISHEN LLC does not warrant that the texts supplied along with, and the lyrics embedded in, the MIDIFILES / AUDIO PLAYBACK are correct or free from errors, given that they constitute a free extra service performed by CAISHEN LLC.
CAISHEN LLC may give warranty by way of subsequent improvement. At CAISHEN LLC�s election it may do so either by providing new files or reworking the existing ones.
Should such subsequent improvement fail finally and clearly after several attempts despite an adequate cut-off period having been fixed in writing, the customer shall have the right to reduce the price or reverse the contract. As regards claims for damages, � 9 shall apply.
The customer shall be obligated to promptly examine the MIDIFILES / AUDIO PLAYBACK on receipt and to complain about apparent defects in writing (including e-mail) within one week, describing such defects in detail.
� 4 Rights of Use
The customer shall be granted a non-exclusive right of use to the MIDIFILES / AUDIO PLAYBACK, unlimited in time, on the scale described below. As between the contracting parties, any rights of use not explicitly stated shall otherwise remain with CAISHEN LLC.
The customer shall be entitled to use the MIDIFILES / AUDIO PLAYBACK on any computer/player technically suited for the purpose. However, at any given point in time the MIDIFILES / AUDIO PLAYBACK may only be used by one person on one computer/player and never simultaneously on two or more computers/players, no matter whether by the same customer or different persons. The right of use shall solely apply to the original data record of the downloaded/supplied MIDIFILES / AUDIO PLAYBACK.
The customer may produce a backup copy of MIDIFILES / AUDIO PLAYBACK; which must not be used at the same time as the original data though.
Except with CAISHEN LLC�s prior written consent the customer shall not be entitled to use, reproduce and disseminate the MIDIFILES / AUDIO PLAYBACK in any way other than that technically described in � 4.2;
- to lease the MIDIFILES / AUDIO PLAYBACK, use them jointly with third parties or otherwise permit third-party use;
- to reproduce and disseminate altered versions and arrangements produced by the customer (including film music and multi-media works);
- to change or remove the notes concerning copyrights and other rights reserved, serial numbers or other features serving data identification as are contained in the data;
- to pass the MIDIFILES / AUDIO PLAYBACK on to any third parties unless the customer ceases to use the files with final effect, not retaining any copy thereof.
CAISHEN LLC explicitly draws the customer�s attention to the fact that the uses listed below need to be reported and paid for to SACEM and/or require the approval of the respective holders of the right to the music titles
performing, broadcasting, publicly reciting the music titles or making them otherwise accessible to third parties;
producing, executing, broadcasting or otherwise publicly reciting altered versions and arrangements thereof (including film music, multi-media works, etc.).
If the customer s use of the MIDIFILES / AUDIO PLAYBACK does not conform to the requirements set out with regard to the rights of use specified herein and if CAISHEN LLC�s protected rights are infringed thereby, CAISHEN LLC shall be entitled to charge the double price for the MIDIFILES / AUDIO PLAYBACK concerned as minimum damages, without being required to furnish proof. The assertion of more extensive claims for compensation of damages shall not be excluded thereby.
� 5 Payment
In online distribution customer�s payment of remuneration shall be made out of the customer account or by credit card.
Pending compensation of all claims of CAISHEN LLC against the customer, the granting of rights of use shall be subject to the condition that all such claims are fully satisfied.
CAISHEN LLC may revoke the authorities of use if the customer is in default, not even paying on receipt of a written warning with indication of the intention to revoke, or if the customer fails to comply with the conditions of use (� 4).
All discounts granted because of the agreed quantity to be purchased shall become void and be newly determined on the basis of the actual quantity purchased by the time the customer account is closed.
� 6 Online Access Data
It shall be the customer�s responsibility to prevent unauthorised third parties from gaining access to the customer�s personal online access data (user name and password).
The customer shall notify CAISHEN LLC without delay if his/her personal access data get lost or if any third party is otherwise in a position to misuse the customer account. On receipt of the loss report CAISHEN LLC will promptly block the customer account. Pending receipt of the loss report CAISHEN LLC shall not be liable for any unauthorised requests for MIDIFILES / AUDIO PLAYBACK and associated debits from the customer account. Should such third parties order additional MIDIFILES / AUDIO PLAYBACK in the period between receipt of the loss report and the blocking of the customer account the customer shall bear the cost incurred thereby up to an amount of EUR 50.00 (flat-rate loss fee). Up to the level of the flat-rate loss fee CAISHEN LLC may also invoice to the customer the expense incurred by handling the loss report.
� 7 Data Protection
The personal data of which CAISHEN LLC gains knowledge in the context of the contractual relations may be processed by it only for internal purposes and on the basis of statutory data protection rules. CAISHEN LLC may also pass the data on to sub-suppliers who perform, and render accounts for, the service contracted for, if applicable.
� 8 Liability
Unless provided for otherwise below, additional claims on the part of the customer -- no matter on which legal grounds -- shall be excluded. Therefore CAISHEN LLC shall not be liable for damages not occurring on the deliverables themselves; in particular CAISHEN LLC shall not be liable for lost profit or any other pecuniary losses of the customer. To the extent that CAISHEN LLC�s liability is excluded or limited this shall equally apply to the personal liability of its employees, representatives and vicarious agents.
The above limitation of liability shall not apply where damage is caused by intent or gross negligence or where personal injury is involved. It shall, moreover, not apply if the customer asserts claims defined in �� 1, 4 Product Liability Law, claims on account of the absence of warranted qualities or claims for damages due to non-performance pursuant French Civil Code.
To the extent that CAISHEN LLC negligently breaches a material contractual duty, its obligation to provide compensation for damage to property shall be limited to the damage typically incurred.
� 9 Applicable law
Any and all legal relations under the present contract shall be governed by the law of the United States of America. Whenever customers are merchants, public law bodies or persons whose residence or business establishment is situated abroad, the place of fulfilment and jurisdiction for any disputes shall be Dover, DE USA.