Clefer Piano – General Terms and Conditions for Users
Preamble
Music App Inc., a company incorporated in Delaware, (hereinafter referred to as the Operator or We) operates a mobile application called "CLEFER PIANO" (hereinafter referred to as CLEFER PIANO or the CLEFER PIANO App). CLEFER PIANO is a digital learning environment with interactive content to help Users (hereinafter referred to as the User(s) or You) acquire piano playing skills and knowledge. To keep You engaged and have a sense of real progress, CLEFER PIANO listens to your performance during musical activities and gives You relevant feedback. To that end, CLEFER PIANO uses your device’s microphone to capture your performance and collect data. The microphone also will capture background noise while You are playing. The performance then will be assessed with a custom set of parameters: whole musical phrases and passages are analyzed for tempo changes, pitch and/or rhythmic accuracy.
In the following, both parties together are hereinafter jointly also referred to as the Parties. The following provisions are the general terms and conditions (hereinafter referred to as Terms) which govern your use of the CLEFER PIANO App. By accepting these Terms, You are entering into a binding agreement with the Operator (hereinafter also referred to as the Agreement) and agree to be bound by this Agreement.
1. User-Onboarding and Use of the CLEFER PIANO App
The use of the CLEFER PIANO App by the User requires a one time-registration. In this registration process, You will be asked to provide your contact and identification data as well as payment-related data, which will be verified, and once your data has been approved, You will receive your own User account and will be asked to submit a password to administer your User account. You must submit all contact and identification data required by the Operator and your data must be accurate and complete. You are also obliged to update your data as soon as it is subject to any changes (e.g. new address or e-mail, etc.). If You do not inform us on any such changes, You may not receive relevant notifications from us and We are not liable for any damages and/or inconveniences caused. You must also keep your passwords confidential at all times and may not share them with any third parties. If unauthorized parties gain access to your User account and use it to your detriment, We are not liable for any damages and/or inconveniences caused. For further optimal use of the CLEFER PIANO App, instrument type, musical experience level and goal setting questions will be asked as a part of the onboarding process and We will categorize your profile accordingly.
2. Services offered on the CLEFER PIANO App
2.1. The User will receive access to the CLEFER PIANO App's music library: a curated collection of musical pieces reproduced in digital format. You will be able to (i) receive feedback in real-time on your performance, (ii) improve your music notation reading and playing and (iii) create your own music using techniques such as improvisation.
2.2. You will receive further access to various learning tools, which will, e.g., allow you to learn to play at your own pace, accompany You as you play, improve your ability of rhythm reading, practice haptic-driven fingering trainers, review your own performances (e.g. by playback of your own performance while comparing with the original track to acknowledge the difference in performance through sound) and receive evaluation- and progress-input from the CLEFER PIANO App (e.g. history of your performance is saved to generate customized lesson content upon your return to the App).
3. Operator's Responsibilities
3.1. The Operator acts as an assistant to User's musical ambitions and goals and provides access to musical knowledge. Operator does not assume any responsibilities with regard to User's musical progress or goal achievements, which he might have envisaged. Operator only provides User with the necessary tools and analysis to improve his skills.
3.2. The User is solely responsible for his performance content uploaded. User represents and warrants to have received all the necessary rights and approvals to upload his performance content and shall hold Operator harmless from any third party claims raised against him (e.g., based on the notion of intellectual property rights infringements or other similar rights).
3.3. Should You have any complaints about the services rendered by us or other concerns in your User experience on the CLEFER PIANO App, please contact us over the customer support button provided in the Settings menu or reach out to support@clefer.com. The Operator will assess your request and, to the extent possible, provide reasonable assistance on a "best effort basis".
3.4. The Operator provides the CLEFER PIANO App only "as is" and "as available", i.e., without the guarantee of constant technical availability at all times. You are aware that operation of the CLEFER PIANO App is also dependent on your internet-connection and the particular offering You subscribe from your relevant telecommunications service provider. The Operator is not responsible for any defects or delays caused by your internet-connection and -subscription, respectively, and does not offer any telecommunications services. The Operator also reserves the right to suspend the operation of the CLEFER PIANO App during regular maintenance work, for the implementation of new features or due to other technical requirements, or even to discontinue operation of the CLEFER PIANO App temporarily. The Operator is also generally free to further develop and adjust any technical features of the CLEFER PIANO App in the future without the need to change these Terms.
4. User's Obligations
4.1. User must adhere with the following obligations when using the CLEFER PIANO App:
a) The use of the CLEFER PIANO App is limited to persons that lawfully can enter into and form contracts under applicable law. It is not intended for use by minors. You hereby confirm that You are of full age and in a capacity to act.
b) User shall maintain the secrecy and security of his password for accessing his User account on the CLEFER PIANO App and take appropriate measures to protect it against use by unauthorized third parties.
c) User shall refrain from uploading content or sharing content over the CLEFER PIANO App, which infringes intellectual property rights or similar rights of third parties (e.g. privacy or personality rights) or might in any way be harmful to third parties. The Operator reserves the right to take down offensive content uploaded at any time and/or temporarily block such content from being displayed, suspend the User's access to the CLEFER PIANO App and/or terminate the Agreement with immediate effect, at the Operator's sole discretion.
d) The User shall use any chat function provided on the CLEFER PIANO App and/or other User's contact details only for the purposes of communicating and exchanging ideas on music and CLEFER PIANO App functions. Any other use of a chat function or other User's contact details received (e.g. communicating advertising content to other Users or communicating in general with other Users without relevancy to the performance of the CLEFER PIANO App) is not permitted. The CLEFER PIANO App is not a mail server and does not purport to provide general communication services. Any chat- or mail-functions are of supportive nature only.
e) The User may not use the CLEFER PIANO App for any purposes that are illegal, harmful to the Operator, that could impair or damage the CLEFER PIANO App (or any network connected with it), that interferes with any other party's use of the CLEFER PIANO App, or otherwise diminishes the integrity of the CLEFER PIANO App or any of its features.
5. Pricing and payment terms
5.1. CLEFER PIANO App is free to download. To further access content on the CLEFER PIANO App we offer several subscription plans that require payment. The Operator may from time to time make changes to the recurring subscription fees, and will communicate any price changes to you in advance. Price changes will take effect at the start of the next subscription period following the date of the price change and, by continuing to use the CLEFER PIANO App after the price change takes effect, you will have accepted the new price. If you do not agree to a price change, you can reject the change by unsubscribing from the applicable subscription plan prior to the price change going into effect.
5.2. We may offer special promotional plans or, from time to time, We may offer trials of our content for a specified period without payment or at a reduced rate. The promotional or trial period shall continue for the period as advertised. Unless You cancel a promotional offer or trial before the end of the offer or trial period, You will automatically become a recurring subscriber to the applicable subscription plan and will automatically be charged the then-current subscription price for that plan.
5.3. Your payment for a subscription will automatically renew at the end of the applicable subscription period, unless you cancel your subscription before the end of the then-current subscription period. We do not provide refunds or credits for any partial subscription periods, except as expressly stated in these Terms.
6. Intellectual Property Rights
6.1. The Operator owns any and all intellectual property rights embodied in or related to the CLEFER PIANO App, in particular in the technology itself (program code and related know-how) as well as in the front-end (design, look and feel), logos and/or trademarks and any similar rights related to and proprietary to the CLEFER PIANO App. The Operator retains all intellectual property rights embodied in or related to the CLEFER PIANO App and nothing in this Agreement shall be understood as an assignment of rights to the User. The User is, however, granted a non-exclusive, royalty-free, non-sublicensable and non- transferable license for the duration of this Agreement, to use such intellectual property rights to the extent required for using the CLEFER PIANO App for the purposes granted under this Agreement.
6.2. You hereby grant the Operator a worldwide, non-exclusive, perpetual, irrevocable, royalty- free, sub-licensable, transferable right to (and to allow others acting on its behalf to (i) use any intellectual property rights in your submitted content for the purpose of providing the services granted under this Agreement to You and (ii) take whatever other action is
required to perform and market the services of the CLEFER PIANO App. The Operator shall have the right to delete, edit, modify, reformat, excerpt or translate any of your submitted material, if this proves necessary for the operation of the CLEFER PIANO App.
6.3. You hereby represent and warrant (i) to be the rightful owner of any intellectual property rights submitted in your materials for or exchanged with other participants over the CLEFER PIANO App or to have received the necessary rights to submit and share such materials and (ii) that any intellectual property rights in your materials will not infringe any third party intellectual property rights.
7. Exclusion of Warranties
7.1. THE OPERATOR HEREBY EXCLUDES ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, FOR THE SERVICES PROVIDED BY OPERATION OF THE CLEFER PIANO APP, TO THE EXTENT POSSIBLE UNDER APPLICABLE LAW. THE SERVICES ARE PROVIDED "AS IS", "AS AVAILABLE" AND AT THE USER'S OWN RISK.
7.2. IN PARTICULAR, THE OPERATOR EXCLUDES ANY WARRANTY THAT THE CLEFER PIANO APP (I) WILL MEET THE USER'S INDIVIDUAL NEEDS AND REQUIREMENTS, (II) WILL ALWAYS BE TECHNICALLY AVAILABLE, SECURE, OPERATE WITHOUT ERROR, IS FREE FROM ANY VIRUSES OR ANYTHING ELSE WHICH MAY HAVE A HARMFUL EFFECT ON ANY TECHNOLOGY OR (III) WILL CONTAIN ANY PARTICULAR FEATURES OR FUNCTIONALITIES REQUESTED BY THE USER. THE OPERATOR MAY ALTER AND OPTIMIZE THE UNDERLYING TECHNOLOGY OF THE CLEFER PIANO APP AT ALL TIMES WITHOUT THE USER'S APPROVAL.
8. Limitation of Liability
8.1. YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE CLEFER PIANO APP IS TO UNINSTALL IT AND TO STOP USING THE CLEFER PIANO APP.
8.2. IN NO EVENT SHALL THE OPERATOR, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS (THE OPERATOR GROUP) BE LIABLE (I) FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, (II) FOR LOSS OF USE, DATA, BUSINESS, PROFITS, GOODWILL OR REPUTATION (WHETHER DIRECT OR INDIRECT) PROFITS, LOSS OF GOODWILL OR REPUTATION, (III) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGIN) AND/OR (IV) FOR ANY DAMAGES CAUSED BY CONTENT UPLOADED BY USER(S), ALL REGARDLESS OF LEGAL THEORY AND WITHOUT REGARD TO WHETHER THE OPERATOR HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES. FOR THE AVOIDANCE OF DOUBT, LIABILITY OF THE OPERATOR GROUP FOR ORDINARY NEGLIGENCE IS HEREBY EXCLUDED.
8.3. These Terms do not limit the Operator's liability for its own unlawful intent, to the extent that applicable law would prohibit such a limitation.
9. Indemnity
To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Operator, its affiliates, officers, directors, employees and agents, from and against any and all claims, proceedings for injunctive relief, 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 the CLEFER PIANO App; (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; or (iv) any claim that your content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the CLEFER PIANO App.
10. Data Protection
10.1. The Operator adheres with all applicable data protection laws, if and to the extent applicable.
10.2. The Operator will collect, store and process any and all personal data received in a lawful and proportionate manner and not transfer such data to unauthorized third parties. Personal data will only be shared among staff of the Operator on an "as needed" basis, and employees of the Operator are bound by confidentiality undertakings to treat data as confidential. The Operator has adequate technical organizational measures in place to protect personal data from unauthorized access. The Operator may disclose your personal data to third party data processors (acting on our behalf), provided that, the Operator will enter into appropriate data processing agreements in accordance with statutory law requirements.
10.3. YOU ARE INTERACTING WITH A COMPANY INCORPORATED IN THE UNITED STATES OF AMERICA. YOU ARE AWARE THAT YOUR PERSONAL DATA MAY BE AUTOMATICALLY UPLOADED TO SERVERS IN ONE OR MORE COUNTRIES, INCLUDING, BUT NOT LIMITED TO, THE UNITED STATES OF AMERICA, THAT MAY NOT ADHERE TO THE SAME DATA PRIVACY STANDARDS AS IN YOUR COUNTRY OF RESIDENCE. YOU VOLUNTARILY AUTHORIZE, AGREE AND UNAMBIGUOUSLY CONSENT TO YOUR PERSONAL DATA BEING TRANSFERRED TO SUCH COUNTRIES. THE OPERATOR WILL UNDERTAKE APPROPRIATE MEASURES TO PROTECT YOUR PERSONAL DATA, FOR EXAMPLE, BY REQUIRING THE RECIPIENT TO AGREE TO DATA PROCESSING AND/OR TRANSFER AGREEMENTS. YOU AGREE THAT WE MAY ALSO TRANSFER YOUR PERSONAL DATA WITH YOUR EXPLICIT CONSENT AND IN CERTAIN OTHER SITUATIONS AS PERMITTED BY APPLICABLE LAW.
10.4. Further details on the treatment of your personal data gathered through the CLEFER PIANO App is available in our data privacy policy available at Clefer.com/privacy-policy.
11. Term and Termination
11.1. The Agreement is concluded for an indefinite term.
11.2. The Operator may terminate these Terms including any additional terms and conditions incorporated herein) or suspend your access to the CLEFER PIANO App at any time, at its sole discretion, if We believe you have breached any of these Terms, if We stop providing the CLEFER PIANO App or any material component thereof, or as We believe necessary to comply with applicable law. If You or the Operator terminate these Term, or if the Operator suspends your access to the CLEFER PIANO App, You agree that the Operator shall have no liability or responsibility to You, and (except as expressly provided in these Terms) the Operator will not refund any amounts that You have already paid. You may terminate these Terms at any time, in which case you may not continue accessing the CLEFER PIANO App.
11.3. Termination of the Agreement does not relieve the User from paying any outstanding amounts accrued, which are still open upon termination of the Agreement.
12. Modifications
The Operator may modify the Terms (including any additional terms and conditions incorporated by reference herein) from time to time. The version of Terms currently in effect is accessible under the Settings tab. The Operator will communicate such modifications in advance by any reasonable means, including posting the revised Terms on the CLEFER PIANO App (provided that, for material changes, we will seek to supplement such notice by email, an in-service pop- up message or other prominent notice within the CLEFER PIANO App, or other means). Continued use of the CLEFER PIANO App by the User will be deemed as the User's acceptance of the modified Terms.
13. Governing law and dispute resolution
13.1. This Agreement and its Terms shall in all respects be governed by, construed and interpreted in accordance with the substantive laws of the State of Delaware, United States of America, irrespective of any choice or conflict of law rules. The application of the Vienna Convention of Sales of Goods is excluded.
13.2. ANY CONTROVERSY, CLAIM OR DISPUTE ARISING OUT OF OR IN CONNECTION WITH OR RELATING IN ANY WAY TO THIS AGREEMENT OR TO YOUR RELATIONSHIP WITH THE OPERATOR AS A USER OF CLEFER PIANO (WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, AND WHETHER THE CLAIMS ARISE DURING OR AFTER THE TERMINATION OF THESE TERMS) WILL BE DETERMINED BY MANDATORY
BINDING INDIVIDUAL (NOT CLASS) ARBITRATION. The place of arbitration shall be Wilmington, Delaware, United States of America. The language of arbitration shall be English. The arbitration shall take place under the Consumer Arbitration Rules of the American Arbitration Association then in force. Except as may be required by law, neither party nor its representatives may disclose the existence, content or results of any arbitration hereunder without the prior written consent of (all/both) parties.
13.3. YOU AND THE OPERATOR AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION.
Unless both You and the Operator agree, no arbitrator or judge may consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
13.4. You and the Operator both agree that nothing in this Agreement will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to bring an individual action (i) in a U.S. small claims court (or the equivalent court in the country where the User resides) or (ii) in a court of law when seeking only temporary or preliminary injunctive relief, pending a final ruling from the arbitrator.
14. Miscellaneous
14.1. Assignment: The Operator may assign, transfer, delegate or otherwise license to a third party, in whole or in part, any of its rights and obligations under this Agreement. You may not assign your rights and obligations hereunder, in whole or in part, nor transfer or sub- license your rights to any third party.
14.2. Entire Agreement: This Agreement is the entire agreement between the User and the Operator regarding the use of the CLEFER PIANO App and substitutes any previous agreement, be it written or oral, hereto concerning the subject matter hereof.
14.3. No waiver: The failure of the Operator to enforce any of the provisions of this Agreement or any rights with respect thereto shall in no way be considered as a waiver of such provisions or rights, or in any way affect the validity of this Agreement. The waiver by the Operator of any breach of this Agreement shall not operate or be construed as a waiver of any prior, concurrent or subsequent breach, and no waiver shall be effective unless made in writing by the Operator.
14.4. Notices: The User consents that the Operator may send e-mails, in-service pop-up messages or similar communications relating to the CLEFER PIANO App from time to time, unless provided differently in this Agreement. The Operator will send all notices relating to the Agreement to the e-mail address submitted in the User's profile, through an in-service pop-up message or similar communication, unless provided for differently in this Agreement. The User may send notices to the Operator through the CLEFER PIANO App and/or the following e-mail-address: support@clefer.com.
14.5. Severability: The invalidity of individual parts of the Agreement shall have no impact on the validity of the Agreement as a whole. The User and the Operator agree that if any provision or part of a provision of the Agreement shall under any circumstances be deemed invalid, inoperative or otherwise not enforceable, the Agreement as a whole shall remain valid and the invalid or inoperative provision or part of a provision shall be replaced by a provision which the User and the Operator would have agreed on in good faith if they had been aware of the invalidity.