MUSICSHAKE EDUCATIONAL AND AFTER SCHOOL PROGRAM
TERMS AND INFORMATION
MUSICSHAKE CAN CHANGE THIS AGREEMENT AT ANY TIME BY SENDING YOUR ADMINISTRATOR (AS DESCRIBED BELOW) AN EMAIL NOTICE. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MUST CEASE USING MUSICSHAKE SERVICES. IF YOU DO NOT CEASE USING MUSICSHAKE SERVICES, YOU WILL BE CONCLUSIVELY DEEMED TO HAVE ACCEPTED THE CHANGE. IF YOU HAVE ANY QUESTIONS ABOUT THE AGREEMENT, YOU MAY CONTACT US AT 213.471.2278.
(i) An "educational institution" is an institution whose sole purpose is to provide educational instruction. The institution must be a school, junior college, college, university or scientific or technical institute accredited by associations recognized by their relevant ministry or department of education. If a question arises as to whether you are an educational institution, Musicshake's opinion shall prevail.
(ii) An "after school program" is defined as an after school program that Musicshake determines from time to time.
For purposes of this Agreement, an educational institution and after school program are each referred to as a "Institution."
Purchase under the Plan permits your Institution to provide access to Musicshake Services to the number of your students or after school program participants (together "Participants") covered under your Institution's Plan.
The Plan must be centrally administered within your Institution, which means that there needs to be at least one employee within your Institution who acts as the administrator and is Musicshake's point of contact. Upon purchase, or upon acceptance of a purchase order by Musicshake, your administrator will receive an email confirmation that will include links and instructions for administering the Plan.
Accounts, Usernames and Passwords
Each Participant must have an account to access Musicshake Services ("Account"). Accounts are created in two ways:
At the option of your administrator, Participant Accounts consisting of usernames and passwords (up to the number of Participants permitted under a Plan) can be created in advance by your administrator and distributed to Participants.Alternatively, your administrator may elect to designate the number of Accounts (up to the number of Participants permitted under a Plan) available to Participants and permit Participants to access the Site and obtain usernames and passwords individually.
Your administrator will have the option of requiring Participant's who access or create accounts, as the case may be, to provide additional personally identifiable information ("Optional Registration Data"). Optional Registration Data is limited to a Participant's: (i) First and Last Name, (ii) Student Identification Number, and (iii) Email Address.
Any such personally identifiable information provided by a Participant must be used solely for the benefit of the Institution and for no other commercial purpose by the Institution or by Musicshake. Musicshake will not make any inquiries to validate Optional Registration Data, and makes no guarantees regarding the accuracy of any Optional Registration Data.
Musicshake reserves the right to delete or change any Account name for any reason or no reason. You are fully responsible for all activities conducted through a Participant's Account. You and the Participant are responsible for maintaining the confidentiality of passwords. At no time should you or a Participant respond to an online request for a password other than in connection with the log-on process to Musicshake Services.
Musicshake does not recognize the transfer of Accounts. You nor a Participant may purchase, sell, gift or trade any Account, and any such attempt shall be null and void.
Access to Musicshake Services may be suspended or terminated for your breach of this Agreement or your payment delinquency (in each case as determined in Musicshake's sole discretion).
License Terms and Other Intellectual Property Terms
You have a nonexclusive, limited, revocable license to use Musicshake Services while in compliance with this Agreement and other agreements between you and Musicshake. Nothing contained in this Agreement or any aspect of Musicshake Services shall be construed as granting you any other rights or privileges of any kind with respect to Musicshake Services. You acknowledge that your use of Musicshake Services, including your creation or uploading of user content, does not make you a Musicshake employee and that you do not expect to be, and will not be, unless otherwise agreed between you and Musicshake, compensated by Musicshake for such activities.
You further agree not to use any aspect of Musicshake Services for any commercial purposes.
You further understand and agree that: (i) you are solely responsible for understanding all copyright, patent, trademark, trade secret and other intellectual property or other laws that may apply to your user content; (ii) you are solely responsible for, and Musicshake will have no liability in connection with, the legal consequences of any actions or failures to act on your part while using Musicshake Services, including without limitation any legal consequences relating to your intellectual property rights; and (iii) Musicshake's acknowledgement hereunder of your intellectual property rights in your user content does not constitute a legal opinion or legal advice, but is intended solely as an expression of Musicshake's intention not to require users of Musicshake Services to forego certain intellectual property rights with respect to user content they create using Musicshake Services, subject to the terms of this Agreement.
Musicshake retains ownership of Musicshake Accounts and related data, regardless of intellectual property rights you may have in content you create or otherwise own. You agree that even though you may retain certain copyright or other intellectual property rights with respect to user content, you do not own the Account you use to access Musicshake Services, nor do you own any data Musicshake stores on Musicshake servers (including without limitation any data representing or embodying any or all of your user content). Your intellectual property rights do not confer any rights of access to Musicshake Services or any rights to data stored by or on behalf of Musicshake.
Intellectual Property Rights
The content available throughout Musicshake Services, except certain user content specifically excluded, including without limitation, the text, graphics, sounds and photos created by and for Musicshake, interactive features and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Musicshake, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Musicshake Program and all content available through Musicshake Services, including content you download, is provided to you AS IS and may not be used, reverse engineered, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without the prior written consent of Musicshake or as expressly provided herein. Musicshake reserves all rights not expressly granted in and to Musicshake Services and the content contained therein.
You agree to not engage in the use, copying, retransmission or distribution of any content available throughout Musicshake Services other than as expressly permitted herein, including any use, copying, or distribution of user content or Site content. You agree not to circumvent, disable or otherwise interfere with security related features of Musicshake Services or features that prevent or restrict use or copying of any content or enforce limitations on use of Musicshake Services or the content therein.
Without a written license agreement, Musicshake does not authorize you to make any use of its Marks. Musicshake reserves all right, title, and interest in the Marks and does not authorize you to display or use any Marks in any manner whatsoever.
Digital Millennium Copyright Act
If you are a copyright owner or an agent thereof and believe that any user content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work(s) claimed to have been infringed;
- 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 locate the material;
- Information reasonably sufficient to contact you, such as an address, telephone number, and, if available, an electronic mail;
- 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
- 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 an exclusive right that is allegedly infringed.
The information should be mailed to 956 S ST ANDREWS PL. #103, LOS ANGELES, CA 90019, USA, or emailed to firstname.lastname@example.org. If you fail to comply with all of the requirements above, your DMCA notice may not be valid.
If you believe that your user content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to use the material in your user content, you may send a notice containing the following information to Musicshake:
- Your physical or electronic signature;
- Identification of the user content that has been removed or to which access has been disabled and the location at which the user content appeared before it was removed or disabled;
- A statement that you have a good faith belief that user the content was removed or disabled as a result of mistake or a misidentification of the user content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
- Musicshake may send a copy of your notice to the original complaining party informing that person that it may replace the removed user content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user content provider, member or user, the removed user content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the notice, at Musicshake's sole discretion.
In using Musicshake Services, you agree to not: impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; upload, download, post, email or otherwise transmit any content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; upload, download, post, email or otherwise transmit any content that would constitute or encourage a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation; upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; upload, download, post, email or otherwise transmit false or misleading information; disrupt or interfere with the security of, or otherwise abuse, Musicshake Services, or any services, system resources, accounts, servers, or networks connected to or accessible through the Site or affiliated or linked websites; access, tamper with or use non-public areas Musicshake Services. Unauthorized individuals attempting to access these areas may be subject to prosecution; disrupt or interfere with any other user's enjoyment of Musicshake Services or affiliated or linked websites; incorporate images or names that would violate a person's right of privacy or publicity.
You acknowledge and agree that Musicshake may preserve user content and may also disclose them if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any user content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Musicshake, its users and the public.
You understand that the technical processing and operation of Musicshake Services, including your user content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connection networks or devices. Musicshake takes no responsibility and assumes no liability for any content uploaded or otherwise transmitted by or to you or by or to any third- party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, infringement, obscenity, pornography or profanity you or a third party may encounter. You agree to waive any claims against Musicshake and its affiliates, contractors, agents and employees for losses, damages and injuries which are based on or relate to communications, user content, content or materials available through Musicshake Services.
You further acknowledge that all aspects of Musicshake Services are subject to change or elimination at Musicshake's sole discretion. Musicshake reserves the right to interrupt the operation of Musicshake Services with or without prior notice for any reason or no reason. You agree that Musicshake will not be liable for any interruption of Musicshake Services, delay or failure to perform, and you understand that you shall not be entitled to any refunds of fees for interruption of Musicshake Services or failure to perform.
DISCLAIMERS OF WARRANTY, LIMITATION OF LIABILITY, AND INDEMNIFICATION
All data on Musicshake's servers are subject to deletion, alteration or transfer. When using Musicshake Services, you may accumulate content that reside as data on Musicshake's servers.
THESE DATA, AND ANY OTHER DATA, ACCOUNT HISTORY AND ACCOUNT NAMES RESIDING ON MUSICSHAKE'S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN MUSICSHAKE'S SOLE DISCRETION. YOU ACKNOWLEDGE THAT, NOTWITHSTANDING ANY COPYRIGHT OR OTHER RIGHTS YOU MAY HAVE WITH RESPECT TO CONTENT YOU CREATE USING MUSICSHAKE SERVICES, AND NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH CONTENT OR OTHER DATA BY YOU OR ANY THIRD PARTY, MUSICSHAKE DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS (SUBJECT TO ANY UNDERLYING INTELLECTUAL PROPERTY RIGHTS IN THE CONTENT), ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON MUSICSHAKE'S SERVERS. YOU UNDERSTAND AND AGREE THAT MUSICSHAKE HAS THE RIGHT, BUT NOT THE OBLIGATION, TO REMOVE ANY CONTENT (INCLUDING YOUR CONTENT) IN WHOLE OR IN PART AT ANY TIME FOR ANY REASON OR NO REASON, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND.
DISCLAIMER OF WARRANTIES
YOUR USE OF MUSICSHAKE SERVICES IS AT YOUR SOLE RISK. MUSICSHAKE SERVICES, INCLUDING THE SITE AND THE INFORMATION, SERVICES, PRODUCTS, PROGRAMS, MATERIALS AND CONTENT AVAILABLE THROUGH IT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MUSICSHAKE AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
MUSICSHAKE DOES NOT MAKE ANY WARRANTY THAT (A) MUSICSHAKE SERVICES OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR (B) THAT MUSICSHAKE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH MUSICSHAKE SERVICES WILL MEET YOUR EXPECTATIONS, OR (D) THAT DEFECTS, IF ANY, WILL BE CORRECTED. YOU AGREE THAT MUSICSHAKE SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGES SUFFERED BY YOU IN CONNECTION WITH MUSICSHAKE SERVICES OR ANY CONTENT CONTAINED THEREIN.
YOU EXPRESSLY AGREE THAT USE OF MUSICSHAKE SERVICES, INCLUDING ALL CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT, DATA AND/OR SOFTWARE. YOU ACKNOWLEDGE THAT MUSICSHAKE DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH MUSICSHAKE SERVICES. EXCEPT AS OTHERWISE AGREED IN WRITING, MUSICSHAKE AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH MUSICSHAKE SERVICES.
YOU ACKNOWLEDGE THAT MUSICSHAKE MAKES NO WARRANTY OR REPRESENTATION THAT CONFIDENTIALITY OF INFORMATION TRANSMITTED THROUGH THIS SITE WILL BE MAINTAINED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MUSICSHAKE OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
LIMITATION OF LIABILITY
IN NO EVENT SHALL MUSICSHAKE OR ANY OF ITS SHAREHOLDERS, PARTNERS, AFFILIATES, DIRECTORS, OFFICERS, SUBSIDIARIES, EMPLOYEES, AGENTS, SUPPLIERS, LICENSEES OR DISTRIBUTORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH MUSICSHAKE SERVICES (INCLUDING ITS MODIFICATION OR TERMINATION), INCLUDING THE SITE, THE MUSICSHAKE PROGRAM, CONTENT, YOUR ACCOUNT (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT WHETHER OR NOT MUSICSHAKE MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, IN NO EVENT WILL MUSICSHAKE'S CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED THE TOTAL AMOUNT OF FEES YOU PAID TO MUSICSHAKE WITHIN THE 12 MONTH PERIOD PRECEDING THE DATE OF MUSICSHAKE'S RECEIPT OF NOTICE OF YOUR CLAIM PURSUANT TO THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO TO THE EXTENT THAT ANY SUCH LIMITATION IS IMPERMISSIBLE, SUCH LIMITATION MAY NOT APPLY TO YOU. YOU AGREE THAT MUSICSHAKE CANNOT BE HELD RESPONSIBLE OR LIABLE FOR ANYTHING THAT OCCURS OR RESULTS FROM ACCESSING OR SUBSCRIBING TO MUSICSHAKE SERVICES.
You agree to defend, indemnify and hold harmless Musicshake, its parent, subsidiaries, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to Musicshake Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that any of your submitted content caused damage to a third party, or (v) your actions caused loss of content. This defense and indemnification obligation will survive this Agreement and your use of Musicshake Services.
Musicshake makes no representation that any aspect of Musicshake Services is appropriate or available for use in jurisdictions outside of the United States. Those who choose to access Musicshake Services from other locations are responsible for compliance with applicable local laws.
Musicshake's failure to act with respect to a breach by you or others does not waive Musicshake's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Musicshake under this Agreement shall be deemed effective unless delivered in a writing signed by a duly appointed officer of Musicshake. All or any of Musicshake's rights and obligations under this Agreement may be assigned to a subsequent owner or operator of Musicshake Services in a merger, acquisition or sale of all or substantially all of Musicshake's assets. You may not assign or transfer this Agreement or any or all of your rights hereunder without the prior written consent of Musicshake, and any attempt to do so is void. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Musicshake shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Musicshake.
You will resolve any claim, cause of action or dispute ("Claim") you have with Musicshake arising out of or relating to this Agreement and any other supplemental agreements between you and Musicshake exclusively in a state or federal court located in Los Angeles County, California. The laws of the State of California will govern this Agreement, as well as any claim that might arise between you and Musicshake, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Los Angeles County, California for the purpose of litigating all such claims.
This Agreement sets forth the entire understanding and agreement between you and Musicshake with respect to the subject matter hereof. The section headings used herein, including descriptive summary sentences at the start of each section, are for convenience only and shall not affect the interpretation of this Agreement. If any provision of this Agreement shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of the remaining provisions.
Musicshake may give notice to you by means of a general notice on our website, after log-in to your Account, by electronic mail to your e-mail address in our records for your Account, or by written communication sent by first class mail, postage prepaid, or overnight courier to your address on record for your Account. All notices given by you or required under this Agreement shall be faxed to 213.596.9107.