End User Liscense Agreement

MUSIC TEACHING SERVICES AGREEMENT

Between

The Trustee for Virtuoso Trust

AND

User

1. INTRODUCTION

   1. This licence agreement (Agreement) is made between The Trustee for Virtuoso Trust, the trustee of the Virtuoso Trust, a discretionary trust with a registered address in Surfers Paradise, QLD, Australia, trading as Musiah (Musiah, we, us, our, our business), and you (User, you) for the provision of the Musiah Services (defined below).

   2. Before using the Musiah Services, you must read through and agree to be bound by the terms of this Agreement. You are taken to have agreed to the terms of this Agreement by: (a) creating an Account on the Musiah Website; (b) clicking on the “I Agree” button when presented with this Agreement; or (c) downloading or installing the Musiah Software. Where the Account Holder has already agreed to this Agreement, subsequent installations of the Musiah Software on additional devices by the Account Holder or by authorised users of that Account do not require a further acceptance of this Agreement.

2. DEFINITIONS

   1. For the purposes of this Agreement, unless the context requires otherwise:

      Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patent, circuit layouts, plant varieties, business and domain names, confidential information, inventions throughout the world, whether such rights are afforded protection by a system of registration or not, and includes all rights in all applications to register these rights, all renewals and extensions of these rights and all rights "in the nature of" these rights.

      Musiah Services means the music teaching services supplied by Musiah to you through the use of the Musiah Software and the Musiah Website.

      Musiah Software means the proprietary software and documentation created, developed and improved from time to time by Musiah and which forms an integral part of the Musiah Services.

      Musiah Website means the website located at https://www.musiah.com/.

      Subscription Fee means the fees that you are obliged to pay to Musiah for the provision of the Musiah Services.

      Subscription Period means the period for which Musiah will provide you with the Musiah Services, as selected by you when ordering the Musiah Services through the Musiah Website.

      Subscription means the arrangement by which you receive the Musiah Services during a Subscription Period in return for payment of the Subscription Fee, as initiated through the Musiah Website, and including any free trial period offered by Musiah prior to the commencement of a paid Subscription Period.

      Account Holder means the individual who creates an Account with Musiah through the Musiah Website and who is responsible for all obligations under this Agreement, including payment of the Subscription Fee and the conduct of any authorised users of that Account.

      Telemetry Data means non-personally-identifying technical information about your device and system environment that is automatically collected by the Musiah Software upon installation or use, including (without limitation) information about storage capacity, available memory (RAM), processor performance, and display frame rate. Telemetry Data does not include any personally identifiable information and is used solely to assist Musiah in providing technical support.

      Third Party Software means the third party software licensed by Musiah under separate terms and conditions which has been incorporated into the Musiah Software.

      Update means software which has been produced primarily to overcome errors or defects in the Musiah Software.

      Upgrade means software which has been produced primarily to provide an extension, alteration, improvement or additional functionality to the Musiah Software.

3. ACCOUNTS

   1. For Musiah to provide you with the Musiah Services, you must first create an Account through the Musiah Website. You can only establish an Account with us if you are:

      1. an individual of legal age in your country of residence; and

      2. not a business or a corporation or any other like entity; and

      3. not prohibited by Musiah or the operation of any law in your country of residence from establishing an Account with Musiah for any reason.

   2. By establishing an Account with Musiah through the Musiah Website, you represent and warrant that you meet the eligibility requirements set out in this Agreement.

   3. To establish an Account with Musiah, you will need to provide us with personal information such as your name, address, phone number, email address and information about how you wish to pay Musiah for providing the Musiah Services. You agree that you will supply accurate and complete information to Musiah when requested, and that you will update that information promptly after it changes. Your personal information will be respected and treated in accordance with our Privacy Policy (available here: https://www.musiah.com/privacy-policy.html)

   4. On creation of an Account, Musiah will issue you with a unique username and/or password (Login Information). You alone will be responsible for who has access to your Account with Musiah using your Login Information and by creating an Account with Musiah, you agree to be solely responsible for any conduct or misconduct carried out using your Account and/or Login Information, whether or not authorized by you. If you reasonably suspect that unauthorised activity is being carried out through your Account or using your Login Information, you should report your suspicions immediately to Musiah.

   5. Creating an Account through the Musiah Website initiates a Subscription. Unless you cancel your Subscription before the end of any free trial period offered by Musiah at the time of sign-up, your Subscription will automatically continue as a paid Subscription at the Subscription Fee applicable to your chosen subscription plan. As the Account Holder, you are responsible for all obligations under this Agreement, including payment of the Subscription Fee and the conduct of all persons who access the Account. The terms of this Agreement are agreed to by the Account Holder only and do not need to be separately agreed to by each individual who subsequently accesses the Account or installs the Musiah Software on an additional device.

   6. You acknowledge and agree that despite anything in this Agreement to the contrary:

      1. Musiah remains the absolute owner of the Account and you have no proprietary or other right, title or interest concerning the Account or Login Information;

      2. Musiah may suspend, terminate, modify, or delete your Account, or reinstate your Account at any time for any reason or no reason, with or without notice to you; and

      3. your Account with Musiah is not transferable and cannot be bought, sold, gifted or traded with any other person and you agree not to participate or encourage any such activities as a condition of you holding an Account with Musiah.

   7. You may cancel your Subscription at any time by following the cancellation instructions on the Musiah Website (https://www.musiah.com/faqs/account/cancel.html). If you wish to close your Account entirely, you may do so by requesting account closure and or deletion of your data by email to [email protected].

4. Supply of Services / GRANT of LIcences

   1. In return for paying the appropriate Subscription Fee and complying with the further conditions in this Agreement, Musiah agrees to supply you with the Musiah Services for the Subscription Period.

   2. For the sole purpose of supplying you with the Musiah Services for the Subscription Period, Musiah grants you a non-exclusive, worldwide licence to download, install and use the Musiah Software on any number of personal computing devices as you may have proper authority to access.

   3. Unless otherwise agreed with Musiah in writing, you may sub-license up to six members of your immediate family the right to use the Musiah Software for the sole purpose of receiving the Musiah Services by creating a profile on your Account for that individual, provided that you remain responsible for the conduct of those individuals with respect to the use of the Musiah Software as if their conduct were your own.

   4. From time to time throughout the Subscription Period, Musiah may install, or require you to download and install, Updates or Upgrades. As a condition of the licensed rights granted to you by this Agreement, you accept that Updates and Upgrades may be installed by Musiah on any personal computing device which contains the Musiah Software without prior notice to you.

   5. By installing or using the Musiah Software, you consent to Musiah automatically collecting Telemetry Data from your device. Telemetry Data is general in nature and does not include any personally identifiable information. Examples of the type of information collected include storage capacity (hard drive or SSD size), available memory (RAM), current display frame rate (FPS), operating system version, and processor type. This information is collected solely to enable Musiah to provide effective technical support and to improve the performance of the Musiah Software. Musiah will handle Telemetry Data in accordance with its Privacy Policy (available at https://www.musiah.com/privacy-policy.html).

   6. You are not permitted to use the Musiah Software for any other purpose or in any manner other than for the purpose of receiving the Musiah Services. In using the Musiah Software, you agree:

      1. to only upload content to the Musiah Website that you have the rights (including Intellectual Property Rights), licences or proper consents to;

      2. not to breach any law, regulation, rule, code or other legal obligation that applies or that may apply to you or your conduct;

      3. not to engage in conduct that:

         1. is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of any privacy laws;

         2. brings Musiah, the Musiah Website, the Musiah Software or the Musiah Services into disrepute; or

         3. infringes the rights (including Intellectual Property Rights) of any person;

      4. not to:

         1. institute, assist, or become involved in any type of cyberattack (including without limitation denial of service attacks) on Musiah or the Musiah Website;

         2. attempt to disrupt access to the Musiah Website or any other person's use of the Musiah Software;

         3. attempt to gain unauthorized access to Musiah, the Musiah Website, any Account which you did not create, or any of the computer systems or networks used by Musiah to deliver the Musiah Services;

         4. obtain or attempt to obtain any information from the Musiah Software using any method not expressly permitted by Musiah;

         5. intercept, examine or otherwise spy on any proprietary communications protocol used by any other person, whether through the use of a network analyzer, packet sniffer or other similar device or program;

         6. collect personal information from or through the Musiah Software or the Musiah Website concerning other users of the Musiah Software;

         7. except with Musiah’s written consent to do so, reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast or circulate any part or whole of the Musiah Software (including any audio files) to any third party; and

         8. disassemble, decompile, reverse engineer or otherwise modify any part or whole of the Musiah Software (including any audio files) and hereby expressly waive any legal rights you may have to do so, including any claim that such activities constitute "Fair Use" or are for "interoperability purposes".

   7. You acknowledge and agree that:

      1. all right, title and interest in and to the Musiah Software (including any Intellectual Property Rights) remains at all times the absolute property of Musiah and its Third-Party Software licensors; and

      2. you will not file for or in any way assist or be concerned with the registration of any Intellectual Property Rights relating to the Musiah Software, the Musiah Website or any aspect of the Musiah Services anywhere in the world.

5. Payment Terms

   1. You agree to pay the Subscription Fee and all fees and applicable taxes incurred by you or anyone using your Account as they become payable.

   2. You may elect for payments of the Subscription Fee to be processed automatically on a periodic basis and, if you so elect, you agree that your nominated payment method will be charged according to your last notified instruction or selection. Automatic payments of the Subscription Fee will continue until you cancel your Subscription or change the subscription details on your Account through the Musiah Website. Please note that instructions for cancellation of a Subscription must be received at least three business days before your nominated payment method is scheduled to be charged in order to avoid being charged automatically. For information on closing your Account, please see Clause 3.6.

   3. Musiah may revise the amount of its Subscription Fees at any time and you agree to pay the revised Subscription Fees in accordance with this Agreement.

6. INTELLECTUAL PROPERTY RIGHTS

   1. Nothing in this Agreement contemplates a licence, permission or right of access or use beyond that which is necessary for you to use the Musiah Software to receive the Musiah Services. In particular, you acknowledge and agree that no licence is given to you by this Agreement’s terms to:

      1. use or apply the word mark “Musiah” and the Musiah® logo trademarks, which are owned by Musiah or its associated entities;

      2. exploit, use, reproduce in material form or take advantage of any rights (including all Intellectual Property Rights) in any text, photographs, artwork, graphics, videos, icons, images, illustrations, character designs, story, software, teaching syllabus, teaching method, music compositions and/or arrangements and recordings including recordings of dialogue and sound effects featured or contained on the Musiah Website or in the Musiah Software or imparted through the Musiah Services which is the property of Musiah, its related entities or its Third-Party Software licensors; and

      3. exploit the Musiah Software which is the subject of the following patents, which have been published and remain on the public record: PCT Patent Application No. PCT/AU2010/000057, International PCT Patent Application published as pamphlet WO2010/083563, Australian PCT Patent Application No. 2010206494, European Union PCT Patent Application No. 10733145.6, U.S.A. PCT Patent Application No. 13/145,598, Canadian PCT Patent Application No. 2,751,382, Japanese PCT Patent Application No. 110000659, Chinese PCT Patent Application No. 201080005425.1, Republic of Korea PCT Patent Application No. 10-2011-7017112, except as contemplated by the terms of this Agreement.

   2. Any and all other rights not specifically and expressly mentioned in this Agreement are reserved, and no licence, permission or right of access or use not granted expressly in this Agreement is to be implied.

7. LIMITATION OF LIABILITY, WARRANTIES AND INDEMNITIES

   1. The Musiah Services and Musiah Software are provided “as is” and “as available” without warranties of any kind, express or implied, including without limitation, warranties of merchantability, fitness for a particular purpose, title, non-infringement or any other warranties usually arising in trade or commerce.

   2. Musiah does not guarantee that your ability to play the piano (or piano-style keyboard) will be enhanced as a result of you receiving the Musiah Services and you acknowledge that the command of any musical instrument requires significant personal dedication and practice.

   3. Musiah is not responsible for:

      1. providing the Musiah Services on a continuous basis. The Musiah Services may be unavailable from time to time, including for maintenance purposes or due to acts of God or other force majeure events, including the inability to obtain or shortage or failure of telecommunications equipment or facilities and failure of information technology or telecommunications equipment or facilities.

      2. your access to the Musiah Website or the Musiah Services from locations of your choosing.

      3. any damage caused by computer viruses, trojans, malware or any other malicious code that is transferred, downloaded or stored onto your computer equipment as a result of you downloading and installing the Musiah Software or your receipt of the Musiah Services.

   4. Musiah’s liability under this Agreement is limited to any direct loss experienced by you as a result of not being able to receive the Musiah Services and includes any liability which cannot be excluded by law. However, in such instances, where Musiah is found to be liable, you accept that Musiah’s liability, at its option, is limited to:

      1. if the liability is in relation to a product of Musiah – replacement of the product or supply of an equivalent product; and

      2. if the liability is in relation to a service provided by Musiah – resupply of the service or supply of an equivalent service.

   5. To the extent permitted by law, you indemnify and hold harmless Musiah from and against any loss, damages or costs (including legal costs on an indemnity basis) suffered or incurred by, or any claims, demands, actions, proceedings or prosecutions which may be brought, commenced or prosecuted against Musiah as a result of any breach of this Agreement by you or by another person using your Account.

8. DISPUTE RESOLUTION

   1. The parties acknowledge that compliance with this clause 8 is a condition precedent to any entitlement to a claim for other relief or remedy allowed by this Agreement. However, nothing in this clause 8 prevents a party from seeking urgent injunctive relief (or any other provisional remedy) from the courts as necessary to protect a party's rights under this Agreement.

   2. At all times while this Agreement is in force the parties agree to co-operate in good faith with each other and to use their respective best commercial endeavours to resolve by mutual agreement any dispute, difference or difficulties (Dispute) between them which may arise from time to time in respect of their obligations under this Agreement.

   3. The parties agree to undertake in good faith attempts to resolve any Dispute through commercial negotiations. Such negotiations will involve an authorised representative of Musiah and you as the Account holder with Musiah. Where a Dispute between the parties cannot be resolved within 14 days of the Dispute being raised by either party, either party may refer the Dispute to mediation to be facilitated by a professional mediator.

   4. The costs and expenses of the mediator will be shared equally between the parties except that each party will bear its own costs of representation and the presentation of evidence before a mediator.

   5. If a Dispute cannot be resolved by mediation either party may issue legal proceedings in respect of the Dispute.

9. Termination

   1. This Agreement may be terminated at any time by mutual written agreement or by using the cancellation process available through the Musiah Website (here: https://www.musiah.com/faqs/account/cancel.html).

   2. Either party may immediately terminate this Agreement by written notice to the other if the other party:

      1. breaches a provision of this Agreement and does not remedy such default within seven days of notice of such default from the first mentioned party; or

      2. has an order made or resolution passed for its winding up;

      3. is placed under official management;

      4. commits an act of bankruptcy;

      5. has an inspector, receiver and/or manager appointed to investigate its affairs;

      6. becomes insolvent (in the sense that it is unable to pay all the person's debts, as and when they become due and payable) or a liquidator is appointed to administer its affairs; or

      7. enters into any composition or arrangement with its creditors generally or any class of them.

   3. All rights granted to you by the terms of this Agreement cease upon termination of this Agreement for any reason.

   4. On the expiry or termination of this Agreement for whatever reason you will immediately cease to use the Musiah Software and uninstall the Musiah Software from every personal computing device on which you had it installed pursuant to the terms of this Agreement;

10. INTERPRETATION

    1. In the Agreement, unless the context otherwise requires:

       1. Headings are for convenience only and do not affect interpretation.

       2. The singular includes the plural and conversely.

       3. The meaning of general words is not limited by specific examples introduced by the words including or for example, or similar expressions.

       4. If a word or phrase is defined, its other grammatical forms have a corresponding meaning.

       5. A reference to a Recital, clause, Schedule, Exhibit or Annexure is a reference to a recital, clause, schedule, exhibit, annexure of or to this Agreement.

       6. A reference to an agreement or document (including, a reference to this Agreement) includes all permitted amendments, variations, supplements to or novations of that agreement or document.

       7. A reference to a party to this Agreement or another agreement or document includes the party's successors and permitted assigns.

       8. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.

11. GENERAL

    1. Unless expressed otherwise in this Agreement, each party to this Agreement bears its own expenses incurred in connection with the preparation, execution and performance of this Agreement, including all fees and expenses of its lawyers, accountants and other professionals and consultants.

    2. No provision of this Agreement is to be construed as implying any relationship between the parties except that each party contracts independently with the other.

    3. No amendment or variation of this Agreement is valid or binding unless made in writing executed by the parties.

    4. No failure of any party at any time to require performance by the other party of any provision of this Agreement precludes that party from requiring such performance at any time afterwards. No failure or delay by a party in exercising any right, power or privilege under or with respect to this Agreement operates as a waiver of such right, power or privilege. No single or partial exercise of any such right, power or privilege precludes any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.

    5. You must not assign or otherwise deal with its rights under this Agreement without the prior written consent of Musiah, which may be withheld at Musiah’s absolute discretion. Musiah may, at its absolute discretion, assign any or all of its rights under this Agreement by novation. In such event, Licensee will novate the terms of this Agreement and replace all references to Musiah with references to such assignee(s). No party may otherwise assign or transfer any of its rights or obligations under this Agreement.

    6. If any part or whole of a provision of this Agreement is held to be void or unenforceable for any reason, that part or whole of that provision which is void or unenforceable will be treated as void or unenforceable within the jurisdiction in which it is held to be so, without otherwise affecting the validity or enforceability of the other provisions contained in this Agreement or the validity and enforceability of this Agreement in any other jurisdiction.

    7. This Agreement is governed by the laws of Queensland, Australia and the parties irrevocably submit to the non-exclusive jurisdiction of the Queensland courts and any courts of appeal from them.

12. APPLE APP STORE TERMS

    1. The provisions of this Section 12 apply where you download or use the Musiah Software through the Apple App Store. In the event of any conflict between the provisions of this Section 12 and the remainder of this Agreement, the provisions of this Section 12 will prevail to the extent of that conflict.

    2. Acknowledgment. This Agreement is concluded between The Trustee for Virtuoso Trust (trading as Musiah) and the User only, and not with Apple, Inc. (“Apple”). Musiah, not Apple, is solely responsible for the Musiah Software and the content thereof. Apple is not a party to this Agreement and is not responsible for the Musiah Software or its content.

    3. Scope of Licence. Where the Musiah Software is obtained through the Apple App Store, the licence granted to you under Clause 4.2 of this Agreement is further limited to a non-transferable licence to use the Musiah Software on any Apple-branded products that you own or control, and only as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.

    4. Maintenance and Support. Musiah is solely responsible for providing any maintenance and support services with respect to the Musiah Software, as described in this Agreement or as required by applicable law. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Musiah Software.

    5. Warranty. Musiah is solely responsible for any product warranties in respect of the Musiah Software, whether express or implied by law, to the extent not effectively disclaimed under Section 7 of this Agreement. In the event of any failure of the Musiah Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Musiah Software to you (if any). To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Musiah Software.

    6. Product Claims. You acknowledge that Musiah, not Apple, is responsible for addressing any claims by you or any third party relating to the Musiah Software or your possession and/or use of the Musiah Software, including: (a) product liability claims; (b) any claim that the Musiah Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation.

    7. Intellectual Property Infringement Claims. You acknowledge that, in the event of any third-party claim that the Musiah Software or your possession and use of the Musiah Software infringes that third party’s intellectual property rights, Musiah, not Apple, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

    8. Export Controls and Legal Compliance. You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

    9. Third-Party Beneficiary. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

END