August 18, 2017
BEFORE USING THE MUSOPEN SERVICE, PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF USE. BY CLICKING “I ACCEPT,” 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 YOU DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE MUSOPEN SERVICE.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 25.2, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MUSOPEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 25.2).
You must be at least 13 years of age to use the Service. We do not knowingly collect personally identifiable information of persons under the age of 13. By using or accessing the Musopen Service, you represent and warrant that: (i) you are at least 13 years of age; (ii) 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; (iii) all registration information you submit is accurate and truthful, including any classroom or school code that you use to register for the Musopen Service; (iv) you have not previously been suspended or removed from the Musopen Service; (v) your registration and your use of the Musopen Service is in compliance with any and all applicable laws and regulations; and (vi) if you are using or opening an account on the Musopen Service on behalf of a company, entity, or organization (collectively “User Organization”), that you are an authorized representative of that User Organization with the authority to bind such organization to these Terms, and that you agree to be bound by these Terms on behalf of such User Organization.
2. Incorporation by Reference.
Individuals who use an application for mobile devices provided by Musopen are also bound by the Musopen End User License Agreement provided with that application. The Musopen End User License Agreement is hereby incorporated by reference into the Terms.
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 found at musopen.org/page/dedicate are hereby incorporated by reference into the Terms.
When using the Musopen Service, you will be subject to any additional terms, policies, guidelines or rules applicable to the Musopen Service or specific services and features of the Musopen Service which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into the Terms.
3. 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. These Terms will identify the date of last update. Your use of the Musopen Service following any such change constitutes your agreement to be bound by the modified Terms. In the case of material changes to the Terms, Musopen may make reasonable efforts to notify you of the change, such as through sending an email to any address you may have used to register for an account, through a pop-up window on the Musopen Service, or some other similar mechanism. Material changes to these Terms that Musopen provides notice of will be effective upon the earlier of: (i) your first use of the Musopen Service with actual notice of such change; or (ii) 30 days from the posting of such change. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
4. Musopen Service Access.
Subject to and conditioned upon your full and ongoing compliance with these Terms, Musopen grants you permission to use the Musopen Service as set forth in these Terms, provided that you do not engage in any of the prohibited uses described below. 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. 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.
5. Ownership; Proprietary Rights.
The Musopen Service is owned and operated by Musopen. The visual interfaces, interactive features, information, graphics, design, compilation, computer code, products, software, services, content, including text, pictures, media, audio recordings, videos, audiovisual combinations, and other works of authorship, and all other elements of the Musopen Service (“Musopen Materials”) provided by Musopen 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: (i) User Submissions (defined below); or (ii) any materials in or otherwise dedicated to the public domain. All Musopen Materials contained on the Musopen Service, other than your User Submissions, are the property of Musopen, its subsidiaries, 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. As between you and Musopen, Musopen reserves all rights, title and interest, including all intellectual property rights, in and to the Musopen Materials 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. Notwithstanding anything to the contrary herein, nothing in these Terms shall be deemed or interpreted to restrict or limit your rights with respect to public domain works available through the Musopen Service.
If you provide, propose or suggest to Musopen any comments, bug reports, feedback, or modifications for the Musopen Service (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary you may include in any communication you have with Musopen), and Musopen shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such Feedback into the Musopen Service. You hereby grant Musopen a royalty free, perpetual, irrevocable, nonexclusive license under all rights necessary to so incorporate and use your Feedback for any purpose.
7. General Payment Terms.
Certain features of the Musopen Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable.
Musopen reserves the right to determine pricing for the Musopen Service. Musopen will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Musopen may change the fees for any feature of the Musopen Service, including additional fees or charges, if Musopen gives you advance notice of such fees before you are charged. Musopen, at its sole dithoscretion, may make promotional offers with different features and different pricing to any of Musopen’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. All payments are final, and in no event will Musopen have any obligation to provide you with a refund of any amounts paid.
You authorize Musopen to charge all sums for the orders that you make and any level of service you select as described in these Terms or as published by Musopen to the payment method specified in your account or at the time you make a purchase. If you pay any fees with a credit card, Musopen may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
7.3 Subscription Service
The Musopen Service may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Musopen to periodically charge, on a going-forward basis, and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Musopen Service. For information on the “Subscription Fee”, please see our musopen.org/account/profile/edit page. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). You may cancel the Subscription Service by contacting us using our contact form. Musopen will cancel the Subscription Service and cease billing you for the Subscription Fee going forward within 30 days of such contact. Musopen does not offer refunds for any prepaid Subscription Fees. In the event that your Subscription Service is cancelled or terminated in the middle of a billing term, you will not be entitled to a refund of a partial month of any recurring charges.
7.4 Delinquent Accounts
Musopen may suspend or terminate any Subscription Service or access to the Musopen Service for any account for which any amount is due but unpaid.
8. User Submissions.
Certain features of the Musopen Service may now or in the future permit the submission and posting or linking of text, pictures, media, audio, video, audiovisual combinations, commentary or any other content submitted by you or other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. Musopen makes no representation that User Submissions will be available on the Musopen Service and may or may not use your User Submissions in its sole discretion. For the avoidance of doubt, User Submissions include, without limitation: (i) content submitted or made available by users through our mobile applications, including recordings, sheet music, information, teaching and practice materials, and (ii) 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. You retain any copyright and other proprietary rights in and to your User Submissions that you may hold and which you have not dedicated to the public domain or waived all rights to under the Music Dedicator Terms. You may only access, reproduce, distribute, modify, perform, display or otherwise use other users’ User Submissions as expressly authorized by Musopen or such other users and only to the extent permitted by the features of the Musopen Service made available to you; provided that the foregoing shall not be deemed or interpreted to restrict or limit your rights with respect to public domain works available through the Musopen Service.
8.2 Grant of Rights.
By submitting User Submissions to Musopen, you hereby grant Musopen and its affiliates, to the extent such User Submissions have not been dedicated to the public domain, a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, 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 any names or pseudonyms that you submit in connection with such User Submission without obligation. 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, to the extent such User Submissions have not been dedicated to the public domain, as permitted by Musopen, the functionality of the Musopen Service, and these Terms.
8.3 User Submissions Representations and Warranties.
You are 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 warrant that: (i) either (a) 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, the features and functionality of the Musopen Service, and these Terms, and to grant the rights and licenses granted herein; or (b) that your User Submissions are in the public domain; and (ii) your User Submissions and the use of your User Submissions by Musopen and users of the Musopen Service pursuant to these Terms does 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; (c) violate any applicable law or regulation; or (d) cause Musopen to violate any law or regulation.
8.4 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; (ii) submit material that is unlawful or could be considered by a reasonable person to be defamatory, libelous, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive, inappropriate, or encouraging of conduct that is a criminal offense, gives rise to civil liability, violates any law or any right of privacy or publicity; (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 the source of any User Submissions; or (vi) post User Submissions that would be harmful to minors in any manner.
9. Content Disclaimer.
You understand that when using the Musopen Service, you will be exposed to User Submissions and other content from other users and third parties, including collaborative and 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.
10. Monitoring Users and Content.
You understand that all Content is the sole responsibility of the person who uploaded that Content. 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 or otherwise made available by users or other persons and does not have any obligation to monitor such Content for any purpose. Musopen and its designees have the right (but not the obligation), in their sole discretion, to monitor the use of Musopen Service and to monitor, pre-screen, refuse, or remove any User Submission uploaded or posted to the Musopen Service. If at any time, Musopen chooses, in its sole discretion, to monitor the Musopen Service or any Content, Musopen nonetheless assumes no responsibility for any Content or the conduct of any user and no obligation to modify or remove any Content. You agree that you must evaluate and that you 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.
11. Removal of Content.
You acknowledge and agree that Musopen and its designees have the right (but not the obligation), in their sole discretion, to refuse, remove or delete any Content, including any User Submission, that is posted, uploaded or made available on the 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, including, if in Musopen’s sole judgment, any User Submission violates these Terms, is not consistent with the quality or nature of the Musopen Service, or is otherwise objectionable.
12. Prohibited Uses.
As a condition of your use of the Musopen Service, you agree not to:
12.1 use the Musopen Service in any manner or for any purpose that is prohibited by these Terms or that violates any law, regulation, third party obligation or right, including by infringing or misappropriating any intellectual property right;
12.2 reproduce, duplicate, sell, trade, resell, distribute or exploit any portion of the Musopen Service, any access or use of the Musopen Service or any Content or Musopen Materials obtained or made available through the Musopen Service, except as expressly permitted herein;
12.3 collect personal information about users or third parties without their consent;
12.4 intentionally interfere with or damage, impair or disable the operation of the Musopen Service or any user’s enjoyment of thereof by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware or other malicious code;
12.5 remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Musopen Service, features that prevent or restrict the use, downloading, or copying of any Content or Musopen Materials accessible through the Musopen Service, or features that enforce limitations on the use of the Musopen Service;
12.6 access any part of the Musopen Service that you are not authorized to or that you have not otherwise been granted access to, including computer systems or networks connected to the Musopen Service through hacking, password mining or any other means;
12.7 interfere with the proper working of the Musopen Service or any activities conducted on the Musopen Service;
12.8 obtain any materials or information, including Content or Musopen Materials through any means not intentionally made available to you through the Musopen Service;
12.9 modify the Musopen Service in any manner or form or use modified versions of the Musopen Service, including for the purpose of obtaining unauthorized access to the Musopen Service;
12.10 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 any other measures we may use to prevent or restrict access to the Musopen Service;
12.11 utilize framing techniques to enclose any trademark, logo, or other Musopen Materials or use any meta tags or any other “hidden text” utilizing Musopen’s name or trademarks without our express written consent;
12.12 make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Musopen Service, including unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
12.13 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;
12.14 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;
12.15 perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, accessing any other Musopen Service account without permission, or falsifying your age or date of birth; or
12.16 attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
13. Account Information.
In order to access some features of the Musopen Service, you will have to create an account. When you register for an account you will be required to provide certain information, including your name and email address. 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 this information will be 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: (i) comply with legal process; (ii) enforce the Terms; (iii) respond to claim that any User Submissions violate the rights of third parties; (iv) respond to your requests for customer service; or (v) protect the rights, property or personal safety of Musopen, its users and the public.
When you create an account you will be asked to provide a password. As you will be responsible for all activities that occur under your account, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password, restricting access to your account, and all activities that occur under your account. 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 ACCOUNT.
15. Dealings with Advertisers.
Your correspondences 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.
16. 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 and therefore makes no claim representation, or warranty regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability or reliability of Third Party Sites. 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 TO AND USE OF THIRD PARTY SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES AVAILABLE ON OR 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. In addition, Musopen may provide tools through the Musopen Service that enable you to export information, including User Submissions to third party services, including through features that allow you to link your account on Musopen with an account on a third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that Musopen may transfer that information to the applicable third party service. Third party services are not under Musopen’s control, and Musopen is not responsible for any third party service’s use of your exported information.
17. Availability of Musopen Service.
Musopen may make changes to or discontinue the Musopen Service or any of the Musopen Materials, including the media, products, or services available within the Musopen Service at any time and without notice. The Musopen Materials may be out of date, and Musopen makes no commitment to update them. Musopen will have no liability for any change to the Musopen Service or any suspension or termination of your access to or use of the Musopen Service.
18. User Disagreements.
You are solely responsible for your involvement with other users. YOU AGREE THAT MUSOPEN WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF OR IN CONNTECTION WITH ANY SUCH INVOLVEMNT, INCLUDING ANY DISPUTE WITH ANOTHER USER.
You agree that Musopen, in its sole discretion and for any or no reason, may terminate any user account (or any part thereof) that you may have on the Musopen Service or your access to and use of the Musopen Service and remove, delete, or discard all or any part of your user account and any of your User Submissions at any time, with or without notice. You agree that Musopen shall not be liable to you or any third-party for any such termination, removal or deletion. Without limiting the foregoing, 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.
If you are dissatisfied with the Musopen Service, please let us know through our web-based contact form available at: musopen.org/contact/. Your input is valuable to us. Your only other remedy with respect to any dissatisfaction with: (i) the Musopen Service; (ii) any term of these Terms; (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 these Terms and your account. Subject to Section 7.3, you may terminate these Terms 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 at: musopen.org/contact/.
20. 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 (collectively the “Musopen Entities”) from any and all claims, losses, obligations, damages, liabilities, costs, debts, and expenses (including attorney’s fees) arising out of: (i) your use, misuse, or alleged use of the Musopen Service; (ii) your User Submissions, including Musopen’s use, distribution, display, performance or other exercise of the 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; (v) your breach of the foregoing representations, warranties, and covenants; and (vi) any dispute or issue between you and any third party. 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.
21. Disclaimers; No Warranties.
21.1 No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE MUSOPEN ENTITIES 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.
21.2 “As Is” and “As Available” and “With All Faults”.
YOU EXPRESSLY AGREE THAT YOUR ACCESS TO ANY USE OF THE MUSOPEN SERVICE IS AT YOUR SOLE RISK. THE MUSOPEN SERVICE, MUSOPEN MATERIALS, CONTENT, INCLUDING 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”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
21.3 Platform Operation and Content
THE MUSOPEN ENTITIES DO NOT REPRESENT OR WARRANT THAT THE MUSOPEN MATERIALS, CONTENT, INCLUDING 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.
THE MUSOPEN ENTITIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS, OR OTHERWISE OF THE MUSOEN MATERIALS, CONTENT, OR ANY RESULTS FROM THE USE OF THE MUSOPEN SERVICE. IN ADDITION, THE MUSOPEN ENTITIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE COPYRIGHT STATUS OR OWNERSHIP OF ANY WORKS LISTED OR MADE AVAILABLE ON THE MUSOPEN SERVICE.
21.5 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.
22. Limitation of Liability and Damages.
22.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) SHALL ANY OF THE MUSOPEN ENTITIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, 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 OF OR INABILITY TO USE THE MUSOPEN SERVICE (INCLUDING ANY MUSOPEN MATERIALS AND CONTENT, INCLUDING USER SUBMISSIONS) OR ANY THIRD PARTY SITES, OR ANY OTHER INTERACTIONS WITH ANY MUSOPEN ENTITIES, EVEN IF MUSOPEN OR A MUSOPEN ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
22.2 Limitation of Damages.
EXCEPT AS SET FORTH IN SECTION 26.2(D)(iii), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE MUSOPEN ENTITIES 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: (A) ONE THOUSAND 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.
22.3 Limitation on Claims
YOU AND MUSOPEN AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MUSOPEN SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
23. Limitations by Applicable Law; Basis of the Bargain.
23.1 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 THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.
23.2 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.
24. 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 (17 U.S.C. §512, as amended). For more information, please go to Musopen’s DMCA Notification Guidelines (musopen.org/page/dmca/). 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.”
25. Governing Law and Dispute Resolution.
25.1 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. To the extent any action hereunder is permitted to be brought in a court, you agree that such action shall be filed only in the state courts or federal courts located in Santa Clara County, California, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purpose of litigating any such action.
25.2 Dispute Resolution and Arbitration.
- Generally. In the interest of resolving disputes between you and Musopen in the most expedient and cost effective manner, you and Musopen agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MUSOPEN ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 25.2(A), we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and Musopen will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Musopen. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or, solely if the other party has not provided a current physical address, by electronic mail (“Notice”). Musopen’s address for Notice is: 5227 Shirley Avenue, Tarzana, CA 91356. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Musopen may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Musopen must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Musopen will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Musopen in settlement of the dispute prior to the arbitrator’s award; or (iii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, Musopen will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Musopen for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND MUSOPEN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Musopen agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Modifications. If Musopen makes any future change to this arbitration provision (other than a change to Musopen’s address for Notice), you may reject the change by sending us written notice within 30 days of the change to Musopen’s address for Notice, in which case your account with Musopen will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.
- Enforceability. If Section 25.2(F) is found to be unenforceable or if the entirety of this Section 25.2 is found to be unenforceable, then the entirety of this Section 25.2 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 25.1 will govern any action arising out of or related to these Terms.
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.
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be given effect to the greatest extent possible, and the remaining parts shall remain in full force and effect.
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.
26.5 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.
The Sections 2, 5, 6, 7, 8, 11, 15, 18, 20, 21, 22, 23, 25 and 26 will survive any termination of these Terms.
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.
26.8 Entire Agreement.
These Terms (for clarity, including any future modifications and other documents incorporated by reference herein) are the entire agreement between you and Musopen relating to the subject matter herein and supersede 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 writing, signed by both parties, or by a change to these Terms or the Guidelines made by Musopen as set forth in Section 3, above.
26.9 No Support.
We are under no obligation to provide support for the Musopen Service. In instances where we may offer support, the support will be subject to published policies.
26.10 Notice to California Residents.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Musopen Service or to receive further information regarding use of the Musopen Service.
The services hereunder are offered by Musopen Inc., located at 5227 Shirley Avenue, Tarzana, CA 91356. You may contact us by sending correspondence to that address or through our web-based contact form available at: musopen.org/contact/. You can access a copy of these Terms at: musopen.org/page/tos/. If you are a California resident, you may have a copy of these Terms emailed to you by sending a letter to the address listed in this Section 26.11 with your email address and a request for such information.