Terms of Service
1. INTRODUCTION AND ACCEPTANCE OF TERMS
Welcome to OnlinePianist (In these Terms of Service, “OnlinePianist” also means OnlinePianist N.T Ltd.), an online piano tutorial subscription service that allows you to play your favorite songs from your web browser and on your compatible mobile devices. OnlinePianist’s website is located at www.OnlinePianist.com (the “OnlinePianist Website”). We refer to the OnlinePianist Website and the software applications made available by OnlinePianist as the “Service Applications”, and we refer to the Service Applications and the service provided through the Service Applications, collectively, as the “OnlinePianist Services”). These Terms of Service (“Terms of Service”) set forth a binding agreement between you and OnlinePianist governing your use of the OnlinePianist Services. These Terms of Service act as the end user license agreement governing your use of the desktop and mobile Service Applications. Please read these Terms of Service carefully. By using any of the OnlinePianist Services, or by creating a user account, you signify your acceptance of these Terms of Service, as they may be amended by OnlinePianist from time to time in its sole discretion. You may only use the OnlinePianist Service and/or open an account if your acceptance of these Terms of Service is not prohibited by applicable law. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD. If you are younger than 18 years old, you must get permission from a parent or guardian to open an account and your parent or guardian must agree to these Terms of Service. If you do not agree to these Terms of Service, then you must cease using the OnlinePianist Services. THESE TERMS OF SERVICE ARE GOVERNED BY THE LAWS SET FORTH IN SECTION 23, DEPENDING ON THE TERRITORY IN WHICH YOU USE THE ONLINEPIANIST SERVICE.
2. PAYMENT TERMS
Please refer to our Payment Terms for the payment terms, conditions and policies applicable to the subscription services, music sheets purchase and other paid services made available through the OnlinePianist Services. By subscribing for, ordering and/or purchasing any subscription, music sheet or other paid services, you agree to be bound by and accept the Payment Terms. The Payment Terms are subject to change without prior notice at any time, at OnlinePianist’s sole discretion. You should review the Payment Terms each time you subscribe for, order and/or purchase any subscription, music sheet or other paid services offered by OnlinePianist. OnlinePianist’s subscriptions, music sheets and other paid services are made available through the OnlinePianist Services, and are accordingly also subject to these Terms of Service. The Payment Terms are incorporated into these Terms of Service by this reference.
3. ONLINEPIANIST SERVICES
OnlinePianist’s streaming service is made available across separate service tiers as follows: 3.1.1 Paid Subscription-Based Streaming – the paid subscription service provides for full-length streaming of piano tutorials with full access to OnlinePianist’s advanced player features. Some of the paid subscription tiers will permit streams and offline access to piano tutorials onto compatible mobile devices. Access to the additional functionalities of each paid subscription tier of the service will only be available during your subscription period. Depending on your location, one or more of the following subscription tiers may be available:
184.108.40.206 OnlinePianist Unlimited – allows you to access and play an unlimited number of full-length piano tutorials of songs to compatible Internet-enabled desktop, mobile and a variety of other devices.
3.1.2 Limited Streaming with Ads - in some territories, OnlinePianist provides a free streaming tier which provides for free full-length streaming of a limited number of piano tutorials per month during a limited free period. This streaming tier cannot be accessed on or through any mobile Service Application. The number of songs which you may stream on this free streaming tier are limited, and will decrease over a series of months. This tier may have intermittent audio, visual and audio-visual advertisements from OnlinePianist and third parties.
3.1.3 Unlimited Streaming with Ads - in some territories, OnlinePianist provides a free streaming tier with advertising which provides for free full-length streaming of piano tutorials. This streaming tier provides for intermittent audio, visual and audio-visual advertisements from OnlinePianist and third parties and cannot be accessed on or through any mobile Service Application.
3.1.4 Mobile Streaming / Offline Access – as described at Section 3.1.1 above, you will be able to access aspects of the OnlinePianist Service on compatible mobile devices through an applicable mobile Service Application that needs to be downloaded onto an Internet-enabled mobile device. Standard data and usage charges instituted by your mobile carrier may apply (and are not included in any subscription fee paid to OnlinePianist) and, accordingly, you should check with your mobile carrier regarding the terms of your individual data or usage plan.
The OnlinePianist Service is intended to provide full-length streaming of OnlinePianist’s entire piano tutorials catalog, and depending on your subscription tier, the ability to play piano tutorials when offline. You understand and acknowledge, however, that your ability to access piano tutorials will depend on you having all necessary equipment and telecommunications systems required.
4.1 OnlinePianist’s Sharing Policy
When you play music or other content on or through the OnlinePianist Service, you authorize OnlinePianist to share and/or publicly display such activity on or through: (i) the OnlinePianist Service; and (ii) any third party social networking sites and services you have linked to your OnlinePianist account, such as Facebook or Twitter (“Social Networks”).
4.2 Abuse Policy
OnlinePianist reserves the right to manage the OnlinePianist Service in a manner that it believes best benefits its users and best enables it to maintain the OnlinePianist Service. The OnlinePianist Service is for your own personal, non-commercial use, and accordingly, OnlinePianist has determined that its ability to provide the OnlinePianist Service is disrupted when users stream piano tutorials in a manner that is not consistent with normal, personal use (even if those activities technically comply with the specific terms of any free or paid offering). Thus, OnlinePianist reserves the right to discontinue any portion or all of the OnlinePianist Service, or to terminate or suspend the account of any person, that, in OnlinePianist’s experience and sole determination, cause or result in disruptive usage patterns or, with respect to individual account holders, otherwise use the OnlinePianist Service in a manner that is not consistent with normal, personal use. For example, you should not share your OnlinePianist account with anyone, use OnlinePianist piano tutorials in your commercial establishment (regardless of the type of establishment) or other public space, or have a software application use the OnlinePianist Service for you for any purpose (unless otherwise permitted by OnlinePianist).
5. PROPRIETARY RIGHTS
You acknowledge and agree that OnlinePianist, and its licensors, retain all right, title and interest in and to all data and information (excluding data and information that you provide), content and materials provided on or through the OnlinePianist Service (including, without limitation, the musical compositions, audiovisual works, editorial and contextual information (about artists and songs), text, images, photographs, videos, graphics, page headers, the selection and arrangement of elements displayed on or through the OnlinePianist Service, the compilation of all content and materials on the OnlinePianist Service, and the business process, procedures, methods and techniques used in the OnlinePianist Service) and all associated copyright rights, trademark rights, trade secret rights and other intellectual property and proprietary rights recognized anywhere in the world. OnlinePianist’s intellectual property, including, without limitation, its trademarks and trade dress, may not be used in any manner that is likely to cause confusion among users, or in any manner that disparages OnlinePianist. All rights are expressly reserved. All third party trademarks, logos, photographs, images, audio and audio-visual content, programming, and other intellectual property contained on or within the Service Applications and through the OnlinePianist Service are the property of the respective third parties, including the respective content owners, and may be protected by applicable copyright, trademark or other intellectual property laws and treaties. Each such third party expressly reserves all rights into such intellectual property. Use of third party software or services is subject to the terms and conditions of the applicable third party license agreements, and you agree to look solely to the applicable third party and not to OnlinePianist to enforce any of your rights in relation thereto.
6. PIANO SHEETS
Music piano sheets available on or through the OnlinePianist Service comprise third-party copyrights protected content provided by Hal Leonard (the “Piano Sheets”). The Piano Sheets are the property of Hal Leonard, © 2015 Hal Leonard Corporation. You may not modify, copy, scan or use any other method to reproduce, duplicate, translate, republish, transmit or distribute in any way any portion of the Piano Sheets. You may not use the Piano Sheets except for your own personal, non-commercial use. See www.halleonard.com.
7. LIMITED LICENSE
OnlinePianist grants you a limited, non-exclusive and non-assignable license to access and use the OnlinePianist Service for your personal, non-commercial use, subject to all of the terms and conditions of these Terms of Service and not for redistribution of any kind. OnlinePianist may make certain software, including, without limitation, the Service Applications, available to you through your use of the OnlinePianist Service. The Service Applications are deemed licensed to you by OnlinePianist under a non-exclusive, non-assignable license for your personal, non-commercial, use only, and your use of such Service Applications is subject to these Terms of Service. With respect to any mobile Service Application, this license is limited to the right to use the applicable mobile Service Application solely on a device that you own or control and as permitted by any usage rules made available from time to time by the applicable provider of a mobile application platform. OnlinePianist does not transfer, and, as between you and OnlinePianist, retains all title to and ownership of the Service Applications and all intellectual property rights in the Service Applications. You may not take any action to jeopardize, limit or interfere with OnlinePianist's ownership of and rights with respect to the Service Applications. You acknowledge that any unauthorized copying or unauthorized use of the Service Applications is a violation of these Terms of Service and is strictly prohibited. Additionally, you may not (i) remove any trademarks, copyright notices or any other notice contained in any content, materials or individual elements provided on or through the OnlinePianist Service, (ii) reproduce, download (other than page caching), modify, publish, distribute, transmit, disseminate, broadcast, transfer, license, sell, rent, lease, adapt, create derivative works of, publicly display or perform, or in any way exploit any content, materials or individual elements provided on or through the OnlinePianist Service without OnlinePianist’s prior written consent, (iii) make any commercial use or any derivative use of any of the OnlinePianist Service or any of the content, materials or individual elements provided on or through the OnlinePianist Service, (iv) frame or utilize framing techniques to enclose any content, materials or individual elements provided on or through the OnlinePianist Service without OnlinePianist’s prior written consent, (v) use any circumvention tools or any metatags or other hidden text utilizing OnlinePianist’s name, trademark, URL or the name of any of the OnlinePianist Service without OnlinePianist’s prior written consent, or (vi) disassemble, decompile or reverse engineer the Software or any other materials made available on or through the OnlinePianist Service or used to provide any of the OnlinePianist Service. The owners of entertainment Content made available through the OnlinePianist Service (including principals, where OnlinePianist is acting as sales agent) are intended third-party beneficiaries of these Terms of Service and will have the right to enforce these Terms of Service against you and invoke all rights hereunder including limitations of liability. OnlinePianist, as a reseller to you, does not accept orders from music dealers, exporters, wholesalers, any businesses of any kind or other customers who intend to resell. The delivery of a product or Content does not transfer to you any commercial or promotional use rights in the product or Content.
8. ACCOUNTS AND SECURITY
To access the Service Applications or use certain aspects of the OnlinePianist Service, you will be directed to create a user account by providing certain information about yourself, or to create new, or to use existing Social Network log-in details. As part of OnlinePianist’s stand-alone registration process, you will be asked to submit, among other things, your email address and to select a password. You agree that all information you provide to OnlinePianist for purposes of creating an account (“Registration Information”) will be true, accurate, current and complete and your failure to provide such information will constitute a breach of these Terms of Service and may result in the immediate termination of your account. By utilizing your Social Network log-in details to log into the OnlinePianist Service (including on or through any of the Service Applications), or by linking your OnlinePianist Service account with any Social Network account, you expressly authorize OnlinePianist to receive, and for such Social Network to share, certain of your information that is available on your Social Network account, including, without limitation, your profile information, friends names, your photos, privacy settings and certain other information that will be disclosed to you (and authorized by you) during the log-in process; and you also authorize OnlinePianist to generate and publish on your Social Network news feed or timeline actions you take on the OnlinePianist Service, and to allow you to interact with your Social Network friends on the OnlinePianist Service. If linked, you agree to allow the Social Networks to receive information concerning the actions you take on the OnlinePianist Service. In the event you no longer want the OnlinePianist Service to publish your OnlinePianist activity on your Social Network news feed or timeline, or want to otherwise limit the ways in which the OnlinePianist Service interacts with your Social Network account, you can always disable aspects of this feature by changing your application settings in the Social Networks. The Social Networks are made available by their respective corporate entities. Without limiting the above, by submitting your information through the Service Applications, and/or by utilizing Social Network log-in details to log-in to the OnlinePianist Service, by linking your OnlinePianist Service account with any Social Network account, or by otherwise providing Registration Information to OnlinePianist, you grant OnlinePianist a perpetual, royalty-free, non-exclusive license to use, reproduce, transmit, and display the information obtained from these third parties and any Registration Information in connection with OnlinePianist’s operation of the Service Applications and/or performance of the OnlinePianist Service (subject to the other terms and conditions of these Terms of Service, including Section 4.1). You will (i) promptly update your Registration Information to keep it true, accurate, current and complete, (ii) maintain the confidentiality of your log-in credentials, and (iii) properly exit from your account at the end of each session. You will not (a) select or use the Social Network account or email address of another person with the intent to impersonate that person, (b) use a name subject to the rights of any other person without authorization, (c) use an email address that is profane, offensive or otherwise inappropriate, or (d) allow any other party to use your account and/or password. You agree to notify OnlinePianist immediately of any known or suspected unauthorized use(s) of your account or any known or suspected breach of security, including loss, theft or unauthorized disclosure of your user name or password or Social Network account log-in details. You understand and agree that you will be liable for all activities that occur under any account created for your use, even if such activities were not committed by you. OnlinePianist is not responsible for any loss or damage as a result of someone else using your account or password with or without your knowledge.
10. USE OF THE ONLINEPIANIST SERVICE
You will comply with all applicable laws, statutes, ordinances and regulations in your use of the OnlinePianist Service. OnlinePianist may immediately terminate your account, or suspend access to your account, in its sole discretion and without notice, for conduct that OnlinePianist reasonably believes is: (i) illegal, fraudulent, harassing or abusive, (ii) a violation of these Terms of Service or any other policies or guidelines posted on or through the Service Applications, or (iii) harmful to other users, third parties, or OnlinePianist’s business. Use of your account for illegal, fraudulent or abusive purposes may be referred to law enforcement authorities without notice. In addition, OnlinePianist may terminate your account if you file any claim against OnlinePianist, or any claim which in any way involves OnlinePianist. Upon OnlinePianist’s termination of your account for any of the forgoing reasons, (a) you may not establish a new account for a period of one (1) year from the date of termination, (b) OnlinePianist will have no obligation to notify any third parties regarding such termination, and (c) you will be responsible for any damages that may result or arise out of termination of your account. You agree not to:
- upload, post, email, transmit, display on or through the Service Applications or make available through the use of any of the OnlinePianist Service: (a) any Content that is fraudulent, misleading, inaccurate, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, profane, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, including any communication that constitutes (or encourages conduct that would constitute) a criminal offense, gives rise to civil liability or otherwise violates any local, state, national or international law, regulation or standard of conduct, (b) any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), (c) any Content that infringes or misappropriates any patent, trademark, trade secret, copyright, privacy, publicity or other rights of any other person or entity, (d) any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation, or (e) any material that contains any virus, Trojan horse, worm, time bomb or any other computer code, files or programs designed to damage, interfere with, intercept, misappropriate, gain control over or limit the functionality of any computer, computer network, communications device, communications system, data or personal information;
- use any of the OnlinePianist Service to (1) harm minors in any way, (2) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity, (3) for any commercial purpose or the benefit of any third party or any manner not permitted by these Terms of Service, (4) intentionally or unintentionally violate any applicable local, state, national or international law, or any rule or regulation having the force of law, (5) provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization, or (6) stalk or otherwise harass another
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content displayed on or through the Service Applications or transmitted through the use of any of the OnlinePianist Service;
- remove any proprietary notices from the Service Applications;
- cause, permit or authorize the modification, creation of derivative works, or translation of any Content displayed on or through the Service Applications or transmitted through the use of any of the OnlinePianist Service without OnlinePianist’s prior written consent;
- attempt to hack the Service Applications, or to defeat or overcome any encryption technology or security measures implemented by OnlinePianist with respect any of the OnlinePianist Service and/or data transmitted, processed or stored by OnlinePianist;
- attempt to harvest or collect any information about or regarding other users of any of the OnlinePianist Service, including, but not limited to any personal data or information;
- engage in web scraping, database scraping or any other activity for the purpose of obtaining Content, data or other information from the Service Applications for any purpose other than the use of the OnlinePianist Service as expressly permitted by these Terms of Service;
- perform any meta-search or automated queries of the Service Applications or of any of the Content;
- interfere with or disrupt any of the OnlinePianist Service or servers or networks connected to or operated with any of the OnlinePianist Service, or disobey any requirements, procedures, policies or regulations of networks connected to or operated with any of the OnlinePianist Service; and/or
- engage in any action or activity in violation of the Abuse Policy, or any other terms, conditions and policies, set forth in these Terms of Service.
11. ADVERTISEMENTS; LINKS TO OTHER WEBSITES
The Service Applications may contain third party advertisements or promotions and/or links to other websites and applications (“Third Party Sites”). OnlinePianist provides these advertisements, promotions and links as part of some of its subscription tiers (in applicable territories) or as a convenience to you and the inclusion or display of any advertisement, promotion or link does not constitute or imply any affiliation, endorsement or sponsorship by OnlinePianist of any given advertiser or its products, or of any given Third Party Site or of any given content contained in the advertisement, promotion or Third Party Site. OnlinePianist makes no guarantees about the accuracy, content or quality of the information, or of the products and services, provided by such advertisements, promotions or Third Party Sites and OnlinePianist assumes no responsibility for misleading, objectionable or inaccurate information, or for the products and services that may be obtained from or through such advertisements, promotions or Third Party Sites. Your interaction or participation with any advertisement or promotion (or the third party sponsor thereof) or with any Third Party Site, whether on or through the Service Applications or any Third Party Sites, are solely between you and such third party and your interaction or participation is subject to the terms and conditions associated with that advertisement, promotion or Third Party Site. You acknowledge and agree that OnlinePianist is not responsible or liable in any way, including for any loss or damage you incur, (i) as a result of your interaction or participation with any advertisement or promotion (or the third party sponsor thereof), whether on or through the Service Applications or any Third Party Sites, (ii) as a result of your activity or interaction on or with any Third Party Site, (iii) for any products or services, or your use thereof, that are the subject of any advertising or promotion, or (iv) for any content, advertising, products or services, or your use thereof, on or made available from any Third Party Sites.
12. WARRANTY DISCLAIMERS
You understand that the processing and transmission of communications relating to the use of any of the OnlinePianist Service may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting to various networks or devices. Therefore, you agree that OnlinePianist will not be responsible or liable for the timeliness, deletion, mis-delivery or failure to store any data, information or content that you provide for display on or through the Service Applications or for transmission through the use of any of the OnlinePianist Service.
Please read the following – it is an important disclaimer:The Service Applications, the OnlinePianist Service and all information and materials provided through the same are provided on an “as is” and “as available” basis without any warranty or condition, express or implied. To the maximum extent permissible under applicable law, OnlinePianist, and each of its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, specifically disclaim all implied warranties including, without limitation, implied warranties of title, quality, performance, merchantability, fitness for a particular purpose and non-infringement. Further, no warranties will be implied by any course of dealing or course of performance.
OnlinePianist makes no representation or warranty that (i) the Service Applications or the OnlinePianist Service will meet your expectations or requirements, (ii) the Service Applications or the OnlinePianist Service will be available, uninterrupted, timely, secure, accurate, complete or error-free, (iii) any results or information that may be obtained from the use of the Service Applications or the OnlinePianist Service will be accurate, timely, complete or reliable, (iv) any errors or defects in the Service Applications or the OnlinePianist Service will be corrected, or (v) the Service Applications and the OnlinePianist Service and/or the servers that make the Service Applications and the OnlinePianist Service available are free of viruses, clocks, timers, counters, worms, software locks, Trojan horses, trap doors, time bombs or any other harmful codes, instructions, programs or components. Operation of the Service Applications and the OnlinePianist Service may be interfered with by numerous factors outside of OnlinePianist’s control including, but not limited to, telecommunications network disruptions. OnlinePianist is not responsible and will have no liability for any failures of the Internet or any data or telecommunications equipment, system or network used in connection with the Service Applications or the OnlinePianist Service. You acknowledge that the entire risk arising out of the use, inability to use or performance of any of the OnlinePianist Service remains with you to the maximum extent permissible under law. For the avoidance of doubt, no provider of a mobile application platform has any warranty obligation, or any obligation to provide maintenance and support services, with respect to any mobile Service Application or the OnlinePianist Service. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. You acknowledge and agree that your sole remedy for any problems or dissatisfaction with any of the OnlinePianist Service is to terminate your account and discontinue use of the Service Applications and the OnlinePianist Service.
13. LIMITATION OF LIABILITY
Please read the following – it is an important limitation of OnlinePianist’s liability:
To the maximum extent permissible under applicable law, in no event will OnlinePianist or its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, be liable with respect to the Service Applications, your use of the Service Applications or any other materials or services provided to you by OnlinePianist or any other subject matter of these Terms of Service, whether based on contract, tort, strict liability or other theory, for (i) any lost or corrupted data, lost profits, loss or damage to any computer, mobile phone or other device or any special, incidental, indirect or consequential damages, even if such parties have been advised of the possibility of such damages or if such damages were foreseeable, or (ii) the cost of procuring substitute goods, services or technology. To the maximum extent permissible under applicable law, the aggregate liability of OnlinePianist and its directors, officers, employees, agents, representatives, stockholders, joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, or any of them, to you or any third party in any circumstance will not exceed one hundred dollars ($100). Some jurisdictions do not allow the exclusion of incidental or consequential damages or limitation of liability, so the above exclusions and limitations may not apply to you.
For the avoidance of doubt, to the maximum extent permissible under applicable law, no provider of a mobile application platform will have any liability to you with respect to any mobile Service Application. If you reside in Germany, notwithstanding the aforementioned limitations of liability NOTHING IN THIS AGREEMENT SHALL LIMIT ONLINEPIANIST'S LIABILITY (i) for damage from injury to life, body or health due to negligent breach of duty or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of OnlinePianist or (ii) for other damage arising from a grossly negligent breach of duty by OnlinePianist or intentional or negligent breach of duty by a legal representative or a person used to perform an obligation of OnlinePianist; (iii) for intentional misconduct; (iv) for damage arising from a negligent breach of an obligation that is essential for the performance of the contract by OnlinePianist ("Cardinal Duties" / Kardinalpflichten) to the extent that is typical and foreseeable; (v) for any guarantee given by OnlinePianist to you; and (v) for any liability under the Federal Product Liability Act (Produthaftungsgesetz).
You agree that OnlinePianist, in its sole discretion and without notice or liability to you, may terminate or suspend your use of, or access to, the Service Applications or any of the OnlinePianist Service at any time if OnlinePianist believes in good faith that you have violated or acted inconsistently with any provision of these Terms of Service or any applicable law, rule or regulation or that you have engaged in conduct that OnlinePianist reasonably determines to be inappropriate or unacceptable. OnlinePianist may in its sole discretion, and at any time, discontinue providing the OnlinePianist Service, or any part thereof, on notice to you.
You agree to defend, indemnify and hold OnlinePianist and its joint venturers, licensors, suppliers, vendors, distributors, advertisers and other contracting parties, together with their respective affiliates, successors, assigns, employees, consultants, agents, directors, officers, members and stockholders, harmless from and against any and all claims, actions, proceedings and suits and all related liabilities, losses, damages, judgments, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees and costs) that are attributable to your actions or fault and arise out of (i) your access, use or misuse of any of the OnlinePianist Service, (ii) your breach or alleged breach of these Terms of Service, (iii) your violation or of any law, rule, regulation or rights of others in connection with your use of any of the OnlinePianist Service including, without limitation, infringement of anyone else’s intellectual property rights, or (iv) your use or disclosure of another person’s personal information including, without limitation, financial or credit information. Without limiting the foregoing, you acknowledge that certain countries may require you to pay a use, sales, consumption, value added or other tax in connection with your use of the OnlinePianist Service. The payment of any such tax, if required, is your responsibility. The foregoing indemnity obligations will apply to any damages OnlinePianist may incur in connection with your failure to pay any such tax.
16. COPYRIGHT INFRINGEMENT
OnlinePianist respects the intellectual property rights of others and we ask our users to do the same. If you believe OnlinePianist Service is infringing your copyright or the copyright of any third party, please notify OnlinePianist in accordance with the following procedure: All notifications of copyright infringement must be in writing and directed to OnlinePianist’s designated agent at the following mailing address, fax number or email address: Attn: Copyright Agent c/o OnlinePianist N.T Ltd. 34 Yitzhak Sade Street, Tel-Aviv, Israel 6721207 (972) 3-7612766 (fax) [email protected] Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed, or access to which is to be disabled, and information reasonably sufficient to permit OnlinePianist to locate the material, (iv) information reasonably sufficient to permit OnlinePianist to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed. In the event of any copyright or other intellectual property infringement claim, you acknowledge and agree that as between OnlinePianist and any provider of a mobile application platform, OnlinePianist, and not any provider of a mobile application platform, will be solely responsible for the investigation and discharge of any such claim.
OnlinePianist may modify or update these Terms of Service at any time without notice. Any additional or different terms in these Terms of Service will be effective upon being posted on the OnlinePianist Site. It is your responsibility to review these Terms of Service periodically. Your continued use of any of the OnlinePianist Service following the posting of any additional or different terms in these Terms of Service constitutes your irrevocable acceptance of those additional or different terms. OnlinePianist reserves the right to add, change, modify, suspend or discontinue all or any of the OnlinePianist Service, in its sole discretion, at any time. Unless expressly stated otherwise, the use of any new or existing OnlinePianist Service, including the availability of services or products through the Service Applications, will be subject to these Terms of Service. In addition, OnlinePianist may also impose limits on any of the OnlinePianist Service or restrict your access to portions or all of the Service Applications in its sole discretion without notice or liability. OnlinePianist reserves the right to refuse to provide you with access to any of the OnlinePianist Service or to allow you to create a user account for any reason.
18. EQUITABLE REMEDIES
You hereby agree that OnlinePianist would be irreparably damaged if these Terms of Service were not specifically enforced, and therefore you agree that OnlinePianist will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of these Terms of Service, in addition to such other remedies as OnlinePianist may otherwise have available to it under applicable laws.
20. GOVERNING LAW; JURISDICTION
The laws applicable to the interpretation of these Terms of Service shall be the laws of Israel, without regard to any conflicts of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 21 below (and claims proceeding in any small claims court), you irrevocably submit to the personal and exclusive jurisdiction of the courts located within Israel for all disputes arising out of or related to your use of any of the OnlinePianist Service.
Before initiating any arbitration or court proceeding, you and OnlinePianist agree to first attempt to negotiate any dispute, controversy or claim related to these Terms of Service (“Claim”) (except those Claims expressly provided in Section 24.6 below) informally for at least thirty (30) days. Negotiations will begin upon written notice. OnlinePianist will send its notice to your billing or other physical address (if on file with OnlinePianist) and email you a copy to the email address you have provided. You will send your notice to OnlinePianist N.T Ltd., 34 Yitzhak Sade Street, Tel-Aviv, Israel 6721207, ATTN: CEO.
21.2 Binding Arbitration
If the parties fail to resolve a Claim through negotiations within the above thirty (30) day period, you and OnlinePianist agree that, except as provided in Section 24.6 below, all Claims will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in these Terms of Service. In the event of a conflict between the terms set forth in this Section 21 and the JAMS Rules, the terms in this Section 21 will control and prevail. Except as otherwise set forth in Section 21.6, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms of Service, (i) you and OnlinePianist may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND ONLINEPIANIST ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
21.3 Arbitration Fees
If you initiate arbitration for a Claim, you will only need to pay an arbitration initiation fee of $250 and we will pay all other costs charged by JAMS for initiating the arbitration. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules. Notwithstanding anything in the clause titled “Miscellaneous” above to the contrary, you will not be required to pay our attorney's’ fees or other costs if you do not prevail in the arbitration.
The arbitration will take place in your hometown area if you so notify OnlinePianistin your notice of arbitration or within ten (10) days following receipt of OnlinePianist’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Tel Aviv, Israel, unless the parties agree to video, phone and/or Internet connection appearances.
You and OnlinePianist agree that any arbitration will be limited to the Claim between OnlinePianist and you individually. YOU AND ONLINEPIANIST AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION WILL BE JOINED WITH ANY OTHER.
21.6 Exceptions to Negotiations and Arbitration
You and OnlinePianist agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or OnlinePianist’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts’ jurisdiction in lieu of arbitration. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in these Terms of Service, some of these provisions may not apply to you.
You and OnlinePianist agree that if any portion this “Dispute Resolution” section is found illegal or unenforceable (except any portion of Section 21.6 above), that portion will be severed and the remainder of this section will be given full force and effect. If Section 21.6 above is found to be illegal or unenforceable then neither you nor OnlinePianist will elect to arbitrate any Claim falling within that portion of Section 21.6 above found to be illegal or unenforceable and such Claim will be exclusively decided by a court of competent jurisdiction within Tel-Aviv, Israel, and you and OnlinePianist agree to submit to the personal jurisdiction of that court. If you are using the OnlinePianist Service in any country within the European Union or otherwise outside of the United States, Canada, Australia and New Zealand, except Brazil Section 21.8 applies as follows:
21.8 Dispute Resolution Procedure
You agree that, in the event any dispute or claim arises out of or relates to your use of the Service Applications or the OnlinePianist Service such dispute or claim shall be resolved in accordance with the following escalation procedure:
(a) you and OnlinePianist will attempt in good faith to negotiate a written resolution of the matter directly between the parties;
(b) if the matter remains unresolved for forty-five (45) days after notification (via certified mail or personal delivery) that a dispute exists, all parties shall join in non-binding mediation services in Israel with a mutually agreed mediator in an attempt to resolve the dispute;
(c) if the parties are unable to resolve the dispute following referral of the matter to mediation in accordance with clause 21.8(b) above, then they shall be free to pursue such other remedies as may be available under applicable law or these Terms of Service;
(d) should you file any arbitration claims, or any administrative or legal actions without first having attempted to resolve the matter by mediation, then you agree that you will not be entitled to recover attorney's fees, even if you would otherwise be entitled to them. You further agree not to bring claims on a representative, class member basis, or as a private attorney general. In the event any litigation is brought by you or OnlinePianist in connection with these Terms of Service, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
If you have any questions about these Terms of Service or your rights or OnlinePianist’s obligations relating to any of the OnlinePianist Service, please email us at [email protected]
23. ELECTRONIC COMMUNICATIONS
You acknowledge and agree that by creating account (or preform any other action designated by OnlinePianist to show your acceptance of the Terms of Service), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the OnlinePianist Service. © 2016 OnlinePianist N.T Ltd.