Terms and Conditions of Use

August 10, 2008

Introduction; Your Agreement to these Terms of Use.

Welcome to the Musopen (“Musopen”) web site – http://www.musopen.org – and any other services owned or operated by Musopen (the “Musopen Service”).  The following Terms of Use for the Musopen Service is a legal contract between you, either an individual user or an entity (collectively or individually “Users”), and Musopen regarding your use of the Musopen Service. The Musopen Service does not include any content uploaded or submitted by the users of the Musopen Service or any content in the public domain.

BEFORE USING THE MUSOPEN SERVICE, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF USE.  BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE MUSOPEN SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING ANY ADDITIONAL GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”).  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE MUSOPEN SERVICE.

1. Eligibility.

We do not knowingly collect personally identifiable information of persons under the age of 13. If you are under the age of 13, you may browse the site and listen to music, however, you are not permitted to donate, upload, bid, post, register for an account or otherwise send information to Musopen or its users through the Musopen Service. You represent that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. If you are using or opening an account on the Musopen Service on behalf of a company, entity, or organization (collectively “User Organization”), then you represent and warrant that you: are an authorized representative of that User Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such User Organization.

2. Incorporation by Reference.

Your privacy is important to Musopen. Musopen’s Privacy Policy is hereby incorporated into these Terms by reference. Please read this notice carefully for details relating to the collection, use, and disclosure of your personal information.

Individuals who upload music and sheet music to Musopen to dedicate them to the public domain are also bound by the Musopen Music Dedicator Terms. The Music Dedicator Terms are hereby

3. Individual Features and Services.

When using the Musopen Service, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms. 

4. Modification of the Terms.

Musopen reserves the right, at its discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you. Please check these Terms and any Guidelines periodically for changes. Your continued use of the Musopen Service after the posting of changes constitutes your binding acceptance of such changes. For any material changes to these Terms, such amended terms will automatically be effective (30) thirty days after they are initially posted on the Musopen Service.

5. Musopen Service Access.

Musopen grants you permission to use the Musopen Service as set forth in these Terms, provided that (i) you do not engage in any of the prohibited uses described below; and (ii) you will otherwise fully comply with these Terms. The Musopen Service is controlled and offered by Musopen from its facilities in the United States of America. Musopen makes no representations that the Musopen Service is appropriate or available for use in other locations. Those who access or use the Musopen Service from other jurisdictions do so at their own risk and are responsible for compliance with local law. 

6. Ownership; Proprietary Rights.

The Musopen Service is owned and operated by Musopen. The content, visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, and all other elements of the Musopen Service that are provided by Musopen (“Musopen Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Musopen Materials do not include User Submissions (defined below); any other content owned by and submitted by Users to the Musopen Service; or any materials dedicated to the public domain. All Musopen Materials contained on the Musopen Service are the copyrighted property of Musopen or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names contained in the Musopen Materials or on the Musopen Service are proprietary to Musopen or its affiliates and/or third-party licensors. Except as expressly authorized by Musopen, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Musopen Materials. Musopen reserves all rights not expressly granted in these Terms. You shall not acquire any right, title or interest to the Musopen Materials, except for the limited rights set forth in these Terms.

7. User Submissions.

7.1 General.

The Musopen Service may now or in the future permit the submission and posting or linking of text, pictures, media, commentary or any other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are displayed for entertainment and informational purposes only and are not controlled by Musopen. Musopen makes no representations that User Submissions will be available on the site and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are available, Musopen does not guarantee any confidentiality with respect to any User Submissions. For clarity, your User Submissions include any “Dedicator Music Content” (as such term is defined in the Music Dedicator Terms) which you have dedicated to the public domain and waived all rights to under the Music Dedicator Terms, and, for which you grant the licenses and make the representations and warranties herein with respect to any rights that you may retain, despite the Music Dedicator Terms, in such Dedicator Music Content.

7.2 Grant of Rights.

For clarity, you retain ownership of your User Submissions. However, by submitting User Submissions to Musopen, you hereby grant Musopen and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the Musopen Service and Musopen’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Musopen Service (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant Musopen and its affiliates and sublicensees the right to use the name that you submit in connection with such User Submission if they choose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. You also hereby grant to each user of the Musopen Service a non-exclusive license to access your User Submissions through the Musopen Service, and to use, reproduce, distribute, display, and perform such User Submissions as permitted by the functionality of the Musopen Service and these Terms.

7.3 User Submissions Representations and Warranties.

You shall be solely responsible for your own User Submissions and the consequences of posting or making them publicly available. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Musopen to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by Musopen and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, Musopen’s use of such User Submissions pursuant to these Terms of Use, and Musopen’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.

7.4 User Submissions Prohibited Uses.

In connection with your User Submissions, you further agree that you will not: (i) publish falsehoods or misrepresentations that could damage Musopen or any third party; (iii) submit material that is unlawful, defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; (v) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or (vi) post User Submissions that would be harmful to minors in any manner.

8. Content Disclaimer.

You understand that when using the Musopen Service, you will be exposed to User Submissions and other content, including collaborative, open content, (such User Submissions and other content, collectively, “Content”) from a variety of sources, and that Musopen is not responsible for the accuracy, integrity, quality, legality, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Musopen with respect thereto. Musopen does not endorse any User Submission or other Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Musopen be liable in any way for or in connection with any User Submissions or other Content, including, but not limited to, for any inaccuracies, errors or omissions in any Content, any intellectual property infringement with regard to any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise displayed or transmitted via the Musopen Service.

9. Monitoring Users and Content.

You understand that all Content is the sole responsibility of the person from whom such Content originated. This means that you, and not Musopen, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the Musopen Service. Musopen does not control the Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Content for any purpose. If at any time, Musopen chooses, in its sole discretion, to monitor the Content, Musopen nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. You acknowledge that Musopen may or may not pre-screen User Submissions, but that Musopen and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Submission that is available via the Musopen Service. Without limiting the foregoing, Musopen and its designees may, at any time and without prior notice, remove any User Submission that in the sole judgment of Musopen violates these Terms, is not consistent with the quality or nature of the Musopen Service, or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Content, including any reliance on the accuracy, completeness, usefulness or legality of such User Submission or other Content.

9. Removal of Content.

Musopen and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available on Musopen Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.

11. Prohibited Uses.

11.1

As a condition of your use of the Musopen Service, you will not use the Musopen Service for any purpose that is unlawful or prohibited by these Terms. Access to the Musopen Materials and the Musopen Service from territories where their access or use thereof is illegal is strictly prohibited. Musopen Users are responsible for complying with all local rules, laws, and regulations including, without limitation, rules about intellectual property rights, the internet, technology, data, email, or privacy.

11.2

You agree not to reproduce, duplicate, sell, trade, resell, distribute or exploit, any portion of the Musopen Service, use of the Musopen Service, access to the Musopen Service, or Content obtained through the Musopen Service, for any purpose other than as the Musopen Service is offered by Musopen. 

11.3

You agree not to collect, or attempt to collect, personal information about Users or third parties without their consent.

11.4

You agree not to intentionally interfere with or damage, impair or disable the operation of the Musopen Service or any User’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code.

11.5

You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Musopen Service, features that prevent or restrict the use or copying of any content accessible through the Musopen Service, or features that enforce limitations on the use of the Musopen Service.

11.6

You agree not to attempt to gain unauthorized access to the Musopen Service, or any part of it, other accounts, computer systems or networks connected to the Musopen Service, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Musopen Service or any activities conducted on the Musopen Service.

11.7

You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Musopen Service. You agree neither to modify the Musopen Service in any manner or form, nor to use modified versions of the Musopen Service, including (without limitation) for the purpose of obtaining unauthorized access to the Musopen Service.

11.8

You agree that you will not use any robot, spider, scraper, or other automated means to access the Musopen Service for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Musopen Service.

11.9

You agree not to utilize framing techniques to enclose any trademark, logo, or other Musopen Materials without our express written consent. You agree not to use any meta tags or any other “hidden text” utilizing Musopen’s name or trademarks without our express written consent.

11.10

You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other Users of the Musopen Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

11.11

You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Musopen Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

11.12

You agree not to modify, adapt, translate or create derivative works based upon the Musopen Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

12. Account Information.

In order to access some features of the Musopen Service, you will have to create an account. You agree that the information you provide to Musopen upon registration and, at all other times, will be true, accurate, current, and complete. You also agree that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that Musopen may access, preserve and disclose your account information and User Submissions if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Musopen, its users and the public.

13. Password.

When you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may be liable for the losses incurred by Musopen or others due to any unauthorized use of your account. MUSOPEN WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM YOUR FAILURE TO ADEQUATELY SAFEGUARD YOUR PASSWORD OR FOR ANY ACTIONS OCCURRING UNDER YOUR PASSWORD.

14. Dealings with Advertisers.

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Musopen Service are solely between you and such advertiser. YOU AGREE THAT MUSOPEN WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE MUSOPEN SERVICE.

15. Links and Third Party Content.

Musopen or third parties may provide links on the Musopen Service to other sites or content (“Third Party Sites”). Musopen has no control over such Third Party Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites or content linked to by the Musopen Service. Musopen provides links to you only as a convenience, and the inclusion of any link on the Musopen Service does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON THIRD PARTY SITES OR AVAILABLE THROUGH THIRD PARTY SITES, IS SOLELY AT YOUR OWN RISK. When you leave the Musopen Service, our terms and policies no longer govern. You should review applicable terms and policies, including the privacy and data gathering practices, of any Third Party Sites.

16. Availability of Service.

Musopen may make changes to or discontinue any of the media, products, or services available within the Musopen Service at any time, and without notice. The media, products, or services on the Musopen Service may be out of date, and Musopen makes no commitment to update these materials on the Musopen Service.

17. User Disagreements.

You are solely responsible for your involvement with other Users. If you have a dispute with one or more Users, you release Musopen (and Musopen's officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

18. Terms of Use Violations; Termination.

18.1 Musopen.

You agree that Musopen, in its sole discretion and for any or no reason, may terminate any User account (or any part thereof) you may have at the Musopen Service or your use of the Musopen Service, and remove and discard all or any part of your account or any User Submission, at any time, with or without notice. Musopen may also in its sole discretion and at any time discontinue providing access to the Musopen Service, or any part thereof, with or without notice. You agree that any termination of your access to the Musopen Service or any account you may have or portion thereof may be effected without prior notice, and you agree that Musopen shall not be liable to you or any third-party for any such termination. Musopen does not permit infringing activities on the Musopen Service, and reserves the right to terminate access to the Musopen Service, and remove all content submitted, by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Musopen may have at law or in equity.

18.2 User.

If you are dissatisfied with the Musopen Service, please let us know through our web-based contact form available here. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with (i) the Musopen Service, (ii) any term of this Terms of Use, (iii) any policy or practice of Musopen in operating the Musopen Service, or (iv) any content or information transmitted through the Musopen Service, is to terminate this Terms of Use and your account. You may terminate this Terms of Use at any time by closing your account, discontinuing your use of any and all parts of the Musopen Service, and providing Musopen notice of termination through our web-based contact form available here.

19. Indemnification; Hold Harmless.

You agree to indemnify and hold harmless Musopen, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), its suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs or debt and expenses (including attorney’s fees) arising out of (i) your use or misuse of the Musopen Service; (ii) your User Submissions, including Musopen’s use, display or other exercise of its license rights granted herein with respect to your User Submissions; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; and (v) your breach of the foregoing representations, warranties, and covenants. Musopen reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Musopen. Musopen will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

20. Disclaimers; No Warranties.

20.1 No warranties.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MUSOPEN, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MUSOPEN OR THROUGH THE MUSOPEN SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN SECTION 20 AND SECTION 21, THE TERM “MUSOPEN” INCLUDES MUSOPEN'S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS.

20.2 “As is” and “As available” and “With All Faults.”

YOU EXPRESSLY AGREE THAT THE USE OF THE MUSOPEN SERVICE IS AT YOUR SOLE RISK. THE MUSOPEN SERVICE, USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MUSOPEN SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

20.3 Platform Operation and Content.

MUSOPEN, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE MUSOPEN MATERIALS, USER SUBMISSIONS, MUSOPEN SERVICE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE MUSOPEN SERVICE OR ANY THIRD PARTY SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

20.4 Accuracy.

MUSOPEN, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MUSOPEN SERVICE OR ANY THIRD PARTY SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IN ADDITION, MUSOPEN ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE COPYRIGHT STATUS OR OWNERSHIP OF ANY WORKS LISTED ON THE MUSOPEN SERVICE AS IN THE

20.5 Harm to Your Computer.

YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE MUSOPEN SERVICE (INCLUDING RSS FEEDS) OR ANY THIRD PARTY SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

21. Limitation of Liability and Damages.

21.1 Limitation of Liability.

UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL MUSOPEN OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE MUSOPEN MATERIALS AND USER SUBMISSIONS ON THE MUSOPEN SERVICE OR ANY THIRD PARTY SITES, THE MUSOPEN SERVICE ITSELF, OR ANY OTHER INTERACTIONS WITH MUSOPEN, EVEN IF MUSOPEN OR A MUSOPEN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, MUSOPEN’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

21.2 Limitation of Damages.

IN NO EVENT SHALL MUSOPEN OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE MUSOPEN SERVICE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES (IF ANY) YOU HAVE PAID MUSOPEN IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.

21.3 Third Party Sites.

THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN MUSOPEN AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE MUSOPEN SERVICE OR RECEIVED BY YOU THROUGH ANY THIRD PARTY SITES.

22. Limitations by Applicable Law; Basis of the Bargain.

22.1 Limitations by Applicable Law.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THIS TERMS OF SERVICE APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

22.2 Basis of the Bargain.

YOU ACKNOWLEDGE AND AGREE THAT MUSOPEN HAS OFFERED ITS PRODUCTS AND SERVICES, SET IT PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MUSOPEN, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MUSOPEN. YOU ACKNOWLEDGE AND AGREE THAT MUSOPEN WOULD NOT BE ABLE TO PROVIDE THE MUSOPEN SERVICE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

23. Digital Millennium Copyright Act Compliance.

It is Musopen’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Musopen’s DMCA Notification Guidelines. Musopen will promptly terminate without notice any User’s access to the Musopen Service if that User is determined by Musopen to be a “repeat infringer.”

24. United States Export Controls.

You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such technical data or commodities to certain foreign countries without prior approval of such agency. Your rights under these Terms are contingent on your compliance with this provision.

25. Miscellaneous.

25.1 Notice.

Musopen may provide you with notices, including those regarding changes to these Terms, by email or postings on the Musopen Service. Notice will be deemed given twenty-four hours after email is sent, unless Musopen is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Musopen Service. In such case, notice will be deemed given three days after the date of mailing.

25.2 Governing Law.

These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

25.3 Jurisdiction.

You agree that any action at law or in equity arising out of or relating to these Terms or the Musopen Service shall be filed only in the state or federal courts in and for Santa Clara County, California and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action.

25.4 No Third Party Beneficiaries

With the exception of rights expressly granted to users by you, the parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.

25.5 Waiver.

A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Musopen to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

25.6 Severability.

If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

25.7 Assignment.

The Terms and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Musopen without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

25.8 Independent Contractor.

You agree that no joint venture, partnership, employment, or agency relationship exists between you and Musopen as a result of these Terms or use of the Musopen Service. You further acknowledge that by submitting User Submissions or other Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Musopen other than pursuant to these Terms.

25.9 Survival.

The Sections entitled “Ownership; Proprietary Rights”, “User Submissions”, “Disclaimers; No Warranties”, “Indemnification; Hold Harmless”, “Limitation of Liability and Damages”, and “Miscellaneous” will survive any termination of these Terms.

25.10 Headings.

The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

25.11 Entire Agreement.

These Terms (for clarity, including any future modifications and other documents incorporated by reference herein) are the agreement between you and Musopen relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms or the Guidelines made by Musopen as set forth in Section 4, above.

25.12 Claims.

YOU AND MUSOPEN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MUSOPEN SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

25.13 No Third Party Beneficiaries

Except for with respect to the licenses expressly granted by you to the users of the Museopen Service herein, the parties specifically disavow any desire or intention to created a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.

25.14 Disclosures.

The services hereunder are offered by Musopen Inc., located at 5227 Shirley Avenue, Tarzana, CA 91356, and by web form here. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

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