MUSIC TEACHING SERVICES AGREEMENT
1.1 This licence agreement (Agreement) is made between Musiah Ltd, a limited liability company with registered address in Hamilton, Bermuda (Musiah, we, us, our, our company), and you (User, you) for the provision of the Musiah Services (defined below).
1.2 Before downloading and installing the Musiah Software (defined below), you must read through and agree to be bound by the terms of this Agreement. You are otherwise taken to have agreed to the terms of this Agreement by clicking on the "I Agree" button at the end of this Agreement's terms, or by downloading or installing the Musiah Software.
2.1 For the purposes of this Agreement, unless the context requires otherwise:
Immediate Family means a spouse or defacto partner, parents and grandparents, children and grand children, brothers and sisters, mother in law, father in law, brothers in law and sisters in law, daughters in law and sons in law. Adopted, half, and step members are also included in immediate family.
Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, 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 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.
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.
3.1 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:
(a) an individual of legal age in your country of residence; and
(b) not a business or a corporation or any other like entity; and
(c) not prohibited by Musiah or the operation of any law in your country of residence from establishing an Account with Musiah for any reason.
3.2 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.
3.4 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.
3.5 You acknowledge and agree that despite anything in this Agreement to the contrary:
(a) 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;
(b) 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
(c) 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.
3.6 You may cancel your Account at any time by following the instructions on the Musiah Website (available here).
4. SUPPLY OF SERVICES / GRANT OF LICENCES
4.1 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.
4.2 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.
4.3 Unless otherwise agreed with Musiah in writing, if you select any available Musiah plan, e.g. a "Monthly", "Yearly" or "3 Years" plan subscription, 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.
4.4 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.
4.5 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:
(a) to only upload content to the Musiah Website that you have the rights (including Intellectual Property Rights), licences or proper consents to;
(b) not to breach any law, regulation, rule, code or other legal obligation that applies or that may apply to you or your conduct;
(c) not to engage in conduct that:
(i) 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;
(ii) brings Musiah, the Musiah Website, the Musiah Software or the Musiah Services into disrepute; or
(iii) infringes the rights (including Intellectual Property Rights) of any person;
(d) not to:
(i) institute, assist, or become involved in any type of cyber attack (including without limitation denial of service attacks) on Musiah or the Musiah Website;
(ii) attempt to disrupt access to the Musiah Website or any other person's use of the Musiah Software;
(iii) 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;
(iv) obtain or attempt to obtain any information from the Musiah Software using any method not expressly permitted by Musiah;
(v) 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;
(vi) collect personal information from or through the Musiah Software or the Musiah Website concerning other users of the Musiah Software;
(vii) 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
(viii) 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".
4.6 You acknowledge and agree that:
(a) 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
(b) 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
5.1 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.
5.2 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 account will be debited or your credit card charged according to your last notified instruction or selection. Automatic payments of the Subscription Fee will continue until you cancel or change the subscription details on your Account through the Musiah Website. Please note that instructions for cancellations of Accounts must be received at least three business days before your account or credit card is scheduled to be charged in order to avoid the account or credit card from being charged automatically.
5.3 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
6.1 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:
(a) use or apply the word mark "Musiah" and the Musiah® logo trade marks, which are owned by Musiah or its associated entities;
(b) 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
(c) exploit the Musiah Software which is the subject of pending patents 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,, 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.
6.2 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
7.1 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.
7.2 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.
7.3 Musiah is not responsible for:
(a) 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.
(b) your access to the Musiah Website or the Musiah Services from locations of your choosing.
(c) 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.
7.4 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:
(a) if the liability is in relation to a product of Musiah - replacement of the product or supply of an equivalent product; and
(b) if the liability is in relation to a service provided by Musiah - resupply of the service or supply of an equivalent service.
7.5 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
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 If a Dispute cannot be resolved by mediation either party may issue legal proceedings in respect of the Dispute.
9.1 This Agreement may be terminated at any time by mutual written agreement or by using the cancellation process available through the Musiah Website (available here).
9.2 Either party may immediately terminate this Agreement by written notice to the other if the other party:
(a) 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
(b) has an order made or resolution passed for its winding up;
(c) is placed under official management;
(d) commits an act of bankruptcy;
(e) has an inspector, receiver and/or manager appointed to investigate its affairs;
(f) 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
(g) enters into any composition or arrangement with its creditors generally or any class of them.
9.3 All rights granted to you by the terms of this Agreement cease upon termination of this Agreement for any reason.
9.4 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;
10.1 In the Agreement, unless the context otherwise requires:
(a) Headings are for convenience only and do not affect interpretation.
(b) The singular includes the plural and conversely.
(c) The meaning of general words is not limited by specific examples introduced by the words including or for example, or similar expressions.
(d) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(e) 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.
(f) 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.
(g) A reference to a party to this Agreement or another agreement or document includes the party's successors and permitted assigns.
(h) 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.
(i) A reference to "dollars" or "$" is to an amount in US dollars.
11.1 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.
11.2 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.
11.3 No amendment or variation of this Agreement is valid or binding unless made in writing executed by the parties.
11.4 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.
11.5 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.
11.6 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.
11.7 This Agreement is governed by the laws of Bermuda and the parties irrevocably submit to the non-exclusive jurisdiction of the Bermudan courts and any courts of appeal from them.