1. CONTRACTUAL RELATIONSHIP
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Modacity. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Modacity may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Modacity may amend the Terms related to the Services from time to time. Amendments will be effective upon Modacity’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. THE SERVICES
The Services constitute a technology platform that enables users of Modacity’s mobile application or website provided as part of the Services (each, an “Application”) to provide practice routines and get recommended exercises based on your instrument, proficiency level, and playing style. Unless otherwise agreed by Modacity in a separate written agreement with you, the Services are made available solely for your personal, non-commercial use. YOU ACKNOWLEDGE THAT Modacity DOES NOT PROVIDE PROFESSIONAL TRAINING ADVICE OR SERVICES OR FUNCTION AS A PROFESSIONAL INSTRUCTOR. TO THE EXTENT THAT MODACITY PROPOSES PRACTICE ROUTINES OR TRAINING INTENDED TO BE PERSONALIZED TO YOUR PRACTICE GOALS, YOU AGREE THAT FOLLOWING, ADOPTING OR EXECUTING SUCH PRACTICE ROUTINES OR TRAINING IS ENTIRELY AT YOUR OWN DISCRETION AND THAT YOU SHOULD CONSULT A PROFESSIONAL OR PROCEED AT YOUR OWN RISK.
Subject to your compliance with these Terms, Modacity grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, non-commercial use. Any rights not expressly granted herein are reserved by Modacity and Modacity’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Modacity; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
3. PROVISION OF THE SERVICES.
You acknowledge that portions of the Services may be made available under Modacity’s brand or request options associated with musical training, including the personalized training brand currently referred to as “Modacity”. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: certain of Modacity’s affiliates.
4. THIRD PARTY SERVICES AND CONTENT.
The Services and all rights therein are and shall remain Modacity’s property or the property of Modacity’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Modacity’s company names, logos, product and service names, trademarks or services marks or those of Modacity’s licensors.
3. YOUR USE OF THE SERVICE
I. USER REQUIREMENTS AND CONDUCT.
You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party.
II. USER-PROVIDED CONTENT.
Modacity may, in Modacity’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Modacity through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Modacity, you grant Modacity a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Modacity’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Modacity the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Modacity’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Modacity in its sole discretion, whether or not such material may be protected by law. Modacity may, but shall not be obligated to, review, monitor, or remove User Content, at Modacity’s sole discretion and at any time and for any reason, without notice to you.
III. NETWORK ACCESS AND DEVICES.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Modacity does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
5. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. MODACITY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, PRACTICE FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MODACITY MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” MODACITY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, PRACTICE FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, MODACITY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. MODACITY DOES NOT GUARANTEE THE QUALITY, SUITABILITY, OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
II. LIMITATION OF LIABILITY.
1. MODACITY SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF MODACITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MODACITY SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF MODACITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MODACITY SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND MODACITY’S REASONABLE CONTROL.
2. MODACITY’S SERVICES MAY BE USED BY YOU TO PLAN AND CONDUCT MUSIC PRACTICE, BUT YOU AGREE THAT MODACITY HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY EXERCISE, ROUTINE, GOODS OR SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
3. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
4. You acknowledge that the Services have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Applications meet your requirements.
5. The activities to which the Services relate carry certain inherent risks including personal injury and property damage. You acknowledge that you undertake such activities entirely at your own risk.
6. Where you have been supplied the Services for domestic and private use only you agree not to use the Applications and Services for any commercial, business or resale purposes which are not first authorized by Modacity.
7. You agree that Modacity, its owners, officers, employees and agents have no liability to you for any loss of employment, wages, salary, profit, loss of business, business interruption, or loss of business opportunity.
8. You acknowledge that the Applications and Services do not provide a professional replacement for practice advice or other advice.
9. You are solely responsible for maintaining the confidentiality of the device through which you access the Services and for restricting access to your password and to your computer while logged into the Services. You accept responsibility for all activities that occur under your account or device.
10. Our maximum aggregate liability under or in connection with these Terms (including your use of any Application or Services) whether in contract, tort (including negligence) any cause of action or otherwise, or under any theory of damages, shall in all circumstances be limited to the amount you paid for the Services in the last twelve (12) months.
You agree to indemnify and hold Modacity and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Modacity’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
6. DISPUTE RESOLUTION
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Modacity, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Modacity are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Modacity otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
II. ARBITRATION RULES AND GOVERNING LAW.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
III. ARBITRATION PROCESS.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. ARBITRATION LOCATION AND PROCEDURE.
Unless you and Modacity otherwise agree, the arbitration will be conducted in New York, New York (unless the arbitrator selects another one if New York, New York is unreasonably burdensome to either party). If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Modacity submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
V. ARBITRATOR’S DECISION.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Modacity will not seek, and hereby waives all rights Modacity may have under applicable law to recover, attorneys’ fees and expenses if Modacity prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the modification-related provisions above, if Modacity changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing Modacity written notice of such rejection by email to: firstname.lastname@example.org, within 30 days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Modacity in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
7. OTHER PROVISIONS
I. CHOICE OF LAW.
These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles.
Modacity may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Modacity, with such notice deemed given when received by Modacity at any time, by email to: email@example.com.
You may not assign these Terms without Modacity’s prior written approval. Modacity may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Modacity’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Modacity or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Modacity’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Modacity in writing.