Noteflight Marketplace Terms of Service
This Agreement governs your use (and that of any person you register) of the Noteflight Marketplace services, features and information, which offers a platform for Sellers to offer for sale and Buyers to purchase Original Compositions (as defined below), PDArrangements (as defined below) and COArrangements (as defined below, and collectively with Original Compositions, PDArrangements and COArrangements, “Scores"), along with associated and successor websites, applications, features, information, and services, or any part thereof (the “Service”). The Service may be accessed through Facebook, Google, and other online channels. By using or accessing the Service, or by registering another person to use the Service, you agree to be bound by this Agreement. If you do not agree to be bound by this Agreement, or you are below the age of majority in the jurisdiction in which you are located, you are not permitted to use the Service or to register another person to use the Service. Noteflight is not liable for the use of the Service by, or for any content or advertisements viewed by, minor children in violation of this Agreement.
1. The Service. The Service is a marketplace that allows Sellers to offer and sell, and Buyers to purchase, Scores. The actual contract for sale is directly between the Seller and Buyer; Noteflight is merely a passive intermediary. Noteflight has no control over and does not guarantee, and expressly disclaims to the extent permitted by applicable law: the truth or accuracy of the content or listings of any Seller or Buyer; the ability of Sellers to sell Scores; the ability of Buyers to pay for Scores; that any Score will not infringe the rights (including intellectual property rights of any kind) of any third party; or that a Buyer or Seller will actually complete a transaction.
2. Sellers’ Rights and Obligations.
2.1. License Grant. Seller grants to the Buyer of its Scores a non-exclusive, non-transferable, limited license to perform, and, solely on the Noteflight platform, to reformat, transpose, print, save, change the musical instruments of and create editable copies of the Scores for that number of performers that corresponds to the Price (as defined below) paid by Buyer for the particular Score. Seller grants to Noteflight and its Affiliates a non-exclusive, non-transferable, irrevocable, limited license to store and distribute each of Seller’s Scores through the Service and, at the option of such Seller, to store Seller’s Original Composition in its database of songs (the “Song Catalog”) and to offer such Original Composition to other Sellers to create COArrangements thereof. “Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with Noteflight. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
2.2. Original Compositions. Each Seller represents and warrants that (i) any Score that consists of a piece presented by Seller as originally composed by such Seller in its entirety (an “Original Composition”) is such Seller’s own, original work, (ii) no third party has any rights of ownership over such Original Composition and (iii) the sale of such Original Composition by such Seller to a Buyer through the Service, the use of such Original Composition by Buyer as contemplated in this Agreement and the inclusion by Noteflight or any Affiliate of such Original Composition in the Song Catalog will not infringe the rights (including intellectual property rights of any kind) of any third party.
(a) Each Seller represents and warrants that (i) any Score that consists of an arrangement (a “PDArrangement”) of a pre-existing work that exists in the public domain (a “Public Domain Work”) is such Seller’s own, original work (except for the portion of such PDArrangement that was derived from the Public Domain Work), (ii) the Public Domain Work was validly in the public domain and no third party had any right of ownership over such Public Domain Work prior to Seller’s creation of the PDArrangement, (iii) no third party has any rights of ownership over such PDArrangement and (iv) the sale of such PDArrangement by such Seller to a Buyer through the Service, the use of such PDArrangement by Buyer as contemplated in this Agreement and the inclusion by Noteflight or any Affiliate of such PDArrangement in the Song Catalog will not infringe the rights (including intellectual property rights of any kind) of any third party.
(b) Each Seller represents and warrants that (i) any Score that consists of an arrangement (a “COArrangement” and collectively with PDArrangements, “Arrangements”) of a pre-existing copyrighted work (a “Copyrighted Work”) is such Seller’s own, original work (except for the portion of such COArrangement that was derived from the Copyrighted Work), (ii) no third party has any rights of ownership over such COArrangement (except for the rights of the owner of the copyright in the Copyrighted Work) and (iii) the sale of such COArrangement by such Seller to a Buyer through the Service, the use of such COArrangement by Buyer as contemplated in this Agreement and the inclusion by Noteflight or any Affiliate of such COArrangement in the Song Catalog will not infringe the rights (including intellectual property rights of any kind) of any third party. To the extent available through the Song Catalog, the Seller shall obtain any Copyrighted Work to be arranged into a COArrangement through the Song Catalog and arrange such Copyrighted Work only to the extent it has been designated by Noteflight or an Affiliate as being available to arrange into a commercially exploitable COArrangement. No Seller shall arrange any Copyrighted Work into a COArrangement that such Seller has uploaded into the Song Catalog him- or herself if the Copyrighted Work already exists in the Song Catalog.
Notwithstanding the foregoing, the Service may not be used for:
- The distribution and sale of COAarrangements for show choir, marching band, drum corps, percussion ensemble, full orchestra, symphony orchestra, professional orchestra, concert band, or wind band.
- The distribution and sale of custom arrangements for ensembles of any size intended for the exclusive use of the commissioning ensemble.
- The creation of medleys, mashups, folios, or any other combination of two or more songs which contain at least one COArrangement.
We reserve the right to immediately suspend any Seller who violates the above conditions and/or submits any Score that is not his/her original work to the Service.
(c) To the extent permitted by applicable law, Noteflight and its Affiliates hereby disclaim any and all liability and shall not be held responsible for the infringement of any rights (including intellectual property rights of any kind) of any third party, including any violation of the United States Copyright Act of 1976, as amended (the “Copyright Act), by Seller in the creation and distribution of any Score (including any COArrangement) through the Service. Noteflight may, in its sole discretion and in accordance with Section 7.2, remove or prevent the future sale of any Arrangement at any time for any reason.
(d) No Seller shall offer any Arrangement through the Service other than in accordance with Section 2.3(a) or Section 2.3(b). Each Seller acknowledges and agrees that the offering of any Arrangement through the Service is at Seller’s own risk and may be subject to Removal at any time.
(e) Each Seller represents and warrants that any Arrangement includes such Seller’s own creative elements which make it unique from the Copyrighted Work or the Public Domain Work (as applicable) and that such Seller did not copy another Arrangement or transcription. Each Seller also acknowledges that the copyright holder of any Copyrighted Work has the authority, at his or her total discretion, to require Noteflight to remove such Seller’s COArrangement from the Service and any other affiliated websites.
2.4. Seller Location. Each Seller represents and warrants that he or she is located in the United States. Each Seller acknowledges that the ability to offer Scores for sale through the Service is contingent upon having a valid United States bank account. Each Seller represents and warrants that he or she is at least the age of majority in the jurisdiction in which he or she is located.
2.5. Non-Exclusivity; Ownership. Solely with respect to Original Compositions and PDArrangements, the Service is a non-exclusive marketplace, meaning each Seller may also sell his or her Original Compositions and PDArrangements on any other platform or in print. No Seller shall offer any COArrangement for sale other than through the Service or through SheetMusicPlus: ArrangeMe. Any use of the SheetMusicPlus: ArrangeMe platform shall be subject to the SheetMusicPlus: ArrangeMe Terms of Service. Subject to the license rights granted to Noteflight, its Affiliates and Buyers in accordance with the terms of this Agreement, and, solely with respect to COArrangements, subject to the rights of the owner of the copyright to any Copyrighted Work, Seller retains no ownership rights in and to his or her Scores.
2.6. Marketing by Seller. Noteflight encourages Sellers to market their Scores on third-party websites, including social media. Notwithstanding the foregoing, (i) any posts marketing Scores on any third-party website are subject to the terms of service applicable to such third-party website and (ii) Noteflight is not responsible for the content or practices of any such third-party website.
2.7. Previews. Each Seller may include previews of his or her Scores that he or she lists for sale through the Service. At Seller’s option, Seller may include either a preview of the entirety of the applicable Score (a “Full Preview”) or a shortened preview consisting of the lesser of 32-measures or half of applicable Score (a “Short Preview”) of any Original Composition or PDArrangement in his or her listing for such Original Composition or PDArrangement on the Service. Seller may include only a Short Preview of any COArrangement in his or her listings for such COArrangement on the Service. For the avoidance of doubt, such previews are considered Content (as defined below).
3. Buyers’ Rights and Obligations.
3.1. Each Buyer acknowledges and agrees that:
(a) he or she will use any Scores purchased through the Service for use only for that number of performers that corresponds to the Price (as defined below) paid by Buyer for the particular Score;
(b) he or she will not create, extract, transcribe, or print individual parts from a COArrangement Score unless such individual parts are provided with such Score;
(c) he or she will comply with all laws governing the intellectual property rights of Seller, Noteflight, its Affiliates or any third party, including the Copyright Act;
(d) the provision of any Score purchased through the Service by such Buyer in an editable format on the Noteflight platform does not constitute any rights to sell arrangements or modified versions of such Score other than as expressly provided by the terms of this Agreement;
(e) the purchase of any Arrangement through the Service is at Buyer’s own risk and may be subject to Removal at any time; and
(f) all purchases of Scores through the Service are final.
3.2. For the avoidance of doubt, no Buyer hereunder is granted any additional performance or sync rights hereby other than as expressly provided in this Agreement. Prior to the purchase of any Score, Buyer hereby acknowledges that he or she has read the listing pertaining to such Score in its entirety.
4. Pricing. Each Buyer of any Score through the Service agrees to pay the price for such Score (including any sales taxes (except for taxes on any other party’s net income), surcharges and any other fees (collectively, “Taxes”)) applicable as of the time he or she submits the order to purchase such Score (the “Price”) with respect to the applicable ensemble size for the Score which Buyer purchased. The Price shall include the fee charged by Noteflight for the Service (the “Service Fee”), and each Seller acknowledges that such Seller shall be entitled only to the applicable Price less the applicable Service Fee and Taxes. The parties acknowledge that COArrangements may be subject to minimum pricing requirements in accordance with the Selling and Purchasing Guide. No Seller shall list any COArrangement for sale through the Service for any amount less than the then-applicable minimum Price therefor as provided in the Selling and Purchasing Guide. The current applicable Service Fee amounts are posted in the Selling and Purchasing Guide. All sales through the Service are final.
6. No Endorsement. All listings, texts, images, articles, photographs, illustrations, audio, graphics, graphs, video clips and other materials available through the Service and material created via the Service (the “Content”) are provided for informational and transactional purposes only. Any information provided to you by Noteflight as a result of your participation in the Service is being provided to you solely for your informational benefit. In creating the Content, including without limitation any rankings, Noteflight relies on third-party sources that Noteflight has not vetted. Your reliance on the Service or the Content is at your own risk. Noteflight does not endorse or warrant any listing of any Seller, any product, service, opinion or other information that may be referenced on or through the Service.
7. Access to the Service.
7.1. Subject to your acceptance of and compliance with this Agreement, Noteflight grants to you a non-exclusive, non-transferable, revocable limited license to use the Service and associated Content for your personal use. You agree not to use the Service for any other purpose or to download, save, copy or distribute the Content that is not owned by or contributed by you except strictly in connection with your proper use of the Service or as specifically allowed in this Agreement.
7.2. Noteflight may change, modify, suspend or discontinue in its entirety or any aspect of the Service at any time. Noteflight may also impose limits on certain features or restrict or prohibit your access to parts or all of the Service at any time, all without notice or liability. The parties acknowledge and agree that Noteflight may, in its sole discretion, control the duration or manner in which listings appear in search results on the Service. The parties acknowledge and agree that Noteflight may, in its sole discretion, remove listings from the Service at any time for any reason and may prevent the future sale of any Score at any time for any reason.
7.3. You expressly agree that the Content may be viewed and accessed only by end users and not by any other website or web publisher.
7.4. Your use of the Service is conditioned upon your compliance with this Agreement, and any use of the Service in violation of this Agreement may constitute infringement of Noteflight’s, its Affiliates’ or third-party copyrights in and to the Service, Content or Scores (as applicable). Noteflight reserves the right to terminate your access to the Service without notice if you violate this Agreement or for any reason at Noteflight’s discretion.
7.5. In certain instances, Noteflight or its vendors may require you to provide proof of identity to access or use the Services, and you agree that you may be denied access or use of the Services if you refuse to provide proof of identity.
7.6 Use of the Service by Minors. Buyers under the age of majority in the jurisdiction in which they are located may not use the Service unless their parent or guardian registers them to use the Service. If you register or allow a minor to use the Service as a Buyer, you hereby accept this Agreement on behalf of yourself and such minor, and you agree that you will be responsible for all uses of the Service by the minor, whether or not these uses were authorized by you, including all purchases made by such minor Buyer through the Service. If you are a parent or guardian registering a minor to use the Service as a Buyer, you hereby represent and warrant that you are the legal parent or guardian of that minor. Sellers under the age of majority in the jurisdiction in which they are located may not use the Service.
8. Ownership of Intellectual Property.
8.1. Except as provided in Section 2.5, and unless otherwise specified in this Agreement or in writing, all Content and other materials that are part of the Service are owned, controlled or licensed by Noteflight, its Affiliates and its licensors and are protected by law from unauthorized use. The entire Contents of the Service are copyrighted under the U.S. copyright laws and/or similar laws of other jurisdictions. Noteflight, and the Noteflight logos, are trademarks of Noteflight and may not be used without the express written permission of Noteflight.
8.2. Except as expressly provided in this Agreement, you do not acquire any ownership rights by using the Service or by copying or downloading material from the Service. However, you retain ownership of any information or content initially owned by you that you upload or incorporate into the Service.
8.3. You agree not to copy, redistribute, publish or otherwise exploit Content or Scores, except as expressly permitted herein, without the express prior written permission of Noteflight or, in the case of a Score, the applicable Seller.
8.4. You hereby grant to Noteflight a limited, non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers), and transferable right and license to use all comments, listings, feedback, blog or forum statements, suggestions, ideas, emails and other submissions (including your name or photograph) disclosed or submitted to Noteflight in connection with your use of the Service (collectively, “Submissions”) in any manner Noteflight may desire, including, but not limited to, to make, have made, use, sell, offer to sell, import, reproduce, modify, create derivative versions of, distribute, publicly display and publicly perform such Submissions, in any and all forms and media now known or hereafter devised, without compensation to you and without identifying you as the creator. You agree that the provisions in this Section 8 will survive any termination of your account(s), the Service, or this Agreement. You hereby waive any right you may have to inspect or approve the materials that may be used in connection with your name and/or photograph, or the uses made of your Submissions in connection with providing the Service. You hereby waive and release any claims you may have against Noteflight for any damages, costs or liabilities you incur from Noteflight’s use of your Submissions, including but not limited to damages caused by any distortion, alteration, optical illusion or composite use, whether intentional or otherwise, that may occur in making, processing, duplicating, distributing or displaying your Submissions.
8.5. You agree to include, and to not remove or alter, Noteflight’s trademark, copyright or other proprietary rights notices, as provided by Noteflight on or in connection with the Service, when using or sharing content, or otherwise using the Service, and you agree to comply with usage guidelines that may be provided by Noteflight from time to time. You agree that all goodwill that arises in connection with your use of Noteflight trademarks inures exclusively to Noteflight, and you agree not to challenge Noteflight’s ownership or control of any Noteflight trademarks, nor use or adopt any trademarks that might be confusingly similar to such Noteflight trademarks.
9. Posting on Other Websites.
9.1. Subject to your acceptance of and compliance with this Agreement, Noteflight grants to you a non-exclusive, non-transferable, revocable limited license to post a screenshot from your account, and any other Content that Noteflight specifically notifies you may be posted on other websites, on your own personal website or on a third-party website that permits posting of content at the direction of users, provided that such third-party website (a) is not commercially competitive to Noteflight, (b) does not criticize or injure Noteflight, (c) does not obtain any rights to such Content other than a non-exclusive license to post it at your direction, (d) does not charge for access to such Content or associated products, services or advertising with such Content, and (e) complies with all applicable laws and does not violate the legal rights of others or publish or distribute any inappropriate, infringing, defamatory, profane, indecent, obscene, unlawful or otherwise objectionable information or material. All of Noteflight’s rights and remedies are expressly reserved, and Noteflight may revoke this limited license, in whole or in part, upon notice.
10. Public Areas. The Service may feature various community areas and other public forums, including but not limited to blogs or member communities, discussion boards, question and answer areas and comment areas (the "Public Areas"). If you use a Public Area you are solely responsible for your own Submissions, the consequences of posting your Submissions and your reliance on any information in the Public Areas or other areas of the Service. If you feel threatened or believe that someone else is in danger, you should contact your local law enforcement agency immediately. Any information you share, including without limitation any discussions with others, in any online Public Area is by design open to the public and is not private. The Noteflight Parties (as defined herein) reserve the right, but shall not be obligated, to record any dialogue or exchanges in the Public Areas of the Service. The Noteflight Parties shall have no responsibility for any actions taken, or failures to take action, with respect to the Public Areas of the Service or any submissions by you or other users. As with any public forum on any website, the information you post may show up in third-party search engine results.
11. Passwords. Noteflight has several tools that allow you to record and store information in your account. You are responsible for all actions on the Service by you or under your password or account and for taking all reasonable steps to ensure that no unauthorized person shall have access to your password or account and you are responsible for all actions taken by individuals who use the Service through your password or account. Without limiting the foregoing, it is your sole responsibility to (1) control the dissemination and use of any login code and password; (2) authorize, monitor and control access to and use of your Service account and password; and (3) promptly inform Noteflight of any need to deactivate a password. You grant Noteflight and all other persons or entities involved in the operation of the Service the right to transmit, monitor, retrieve, store and use any information recorded and/or stored in your account in connection with the operation of the Service.
12. Usage Rules. As a condition of your use of and access to the Service, you agree to comply with any application-, tool-, or content-specific rules published within the Service as well as the following usage rules, which Noteflight may modify or supplement in its discretion from time to time (with notice to you of material changes, per Section 5). You agree that you will not, in regard to the Service (as determined by Noteflight in its discretion):
(a) Copy, adapt, reverse engineer, decompile, reverse assemble, modify or attempt to discover any software (source code or object code) that the Service creates to generate web pages or any software or other products or processes accessible through the Service;
(b) use or launch, develop or distribute any automated system, including, without limitation, any spider, robot (or "bot"), cheat utility, scraper or offline reader that accesses the Service, or use or launch any unauthorized script or other software;
(c) distribute any virus, time bomb, trap door, Trojan horse, worm, malware, ransomware or other harmful, malicious or disruptive computer code, mechanism, software, script, agent or program (“Malware”);
(d) cover or obscure any notice, legend, warning, banner or advertisement contained on the Service;
(e) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service;
(f) sell the Service, and Scores purchased by you through the Service, or any part thereof, for currency or items of value;
(g) violate any applicable law, including without limitation the Copyright Act, any other law governing the intellectual property rights of any third party or any applicable export laws;
(h) harvest or otherwise collect information about others, including email addresses, without their permission for posting or viewing Submissions;
(i) infringe or violate the rights of any other party, including without limitation any intellectual property rights or rights of privacy or publicity;
(j) engage in conduct that is obscene, offensive, pornographic, fraudulent, deceptive, defamatory, threatening, harassing, abusive, slanderous, hateful or causes embarrassment to any other person;
(k) further any chain letters or pyramid schemes, transmit unsolicited messages or engage in “spam;”
(l) deliberately mislead anyone as to your identity, impersonate another, falsely identify the source of any Submissions, or allow another person or entity to use your identity in order to access the Service or post or view Submissions;
(m) engage in conduct that conflicts with the spirit or intent of the Service, including without limitation, by disrupting the flow of dialogue in a Public Area (as defined above), restricting any other user from using or enjoying the Service or exposing Noteflight or another to any liability or detriment of any kind;
(n) use automated queries, including screen and database scraping, spiders, robots, crawlers, information harvesting, and any other automated activity with the purpose of obtaining Content, information or data from the Service, unless you receive the express written permission of Noteflight; or
(o) violate the terms of service of Facebook, Twitter or other channel by which you access the Service.
14. Disclaimers; Limitations; Waivers of Liability.
14.1. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT THIS DISCLAIMER IS PROHIBITED UNDER APPLICABLE LAWS, AND WITH ANY LEGALLY REQUIRED WARRANTY PERIOD LIMITED TO THE SHORTER OF 30 DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED). WITHOUT LIMITING THE FOREGOING, NEITHER NOTEFLIGHT NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, "NOTEFLIGHT PARTIES") WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, UNCORRUPTED, TIMELY, FREE FROM MALWARE OR ERROR-FREE.
14.2. THE NOTEFLIGHT PARTIES FURTHER MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE OR THE CONTENT WILL BE ACCURATE, RELIABLE, COMPLETE, CURRENT OR TIMELY. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FROM TIME TO TIME FOR MAINTENANCE OR OTHER REASONS. NOTEFLIGHT IS NOT RESPONSIBLE FOR TECHNICAL MALFUNCTIONS OR OTHER PROBLEMS OF TELEPHONE NETWORKS OR SERVICES, COMPUTER SYSTEMS, MOBILE PHONE EQUIPMENT, SOFTWARE OR EMAIL, INCLUDING TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY SITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO A USER'S OR TO ANY OTHER PERSON'S COMPUTER, MOBILE PHONE, OR OTHER HARDWARE OR SOFTWARE, RELATED TO OR RESULTING FROM USING OR DOWNLOADING MATERIALS IN CONNECTION WITH THE WEB AND/OR IN CONNECTION WITH THE SERVICES.
14.3. THE NOTEFLIGHT PARTIES DO NOT ENDORSE OR WARRANT ANY CONTENT, LISTING, SCORE, PRODUCT, SERVICE, OPINION OR OTHER INFORMATION THAT MAY BE REFERENCED ON OR THROUGH THE SERVICE. THE SERVICE HEREUNDER IS DESIGNED FOR INFORMATIONAL AND TRANSACTIONAL PURPOSES ONLY. THE NOTEFLIGHT PARTIES HAVE NO RESPONSIBILITY FOR OR INVOLVEMENT BETWEEN ANY BUYER OR SELLER OR RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN ANY USER OF THE SERVICE AND ANY OTHER USER OF THE SERVICE.
14.4. THE NOTEFLIGHT PARTIES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, PERSONAL INJURY/WRONGFUL DEATH, LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, THE USE OR MISUSE OF SUBMISSIONS OR CONTENT IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, WHETHER OR NOT THE NOTEFLIGHT PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE FOREGOING EXCLUSION OF LIABILITY IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, AND A DETERMINATION IS MADE THAT NOTEFLIGHT IS LIABLE, UNDER NO CIRCUMSTANCES WILL THE NOTEFLIGHT PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID NOTEFLIGHT IN THE 90 DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT THE CLAIM.
14.5. TO THE FULLEST EXTENT PERMITTED BY LAW, THESE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION, ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
14.6. Release. You forever release, discharge and covenant not to sue the Noteflight Parties from any and all liability, claims, actions and expenses that may arise, whether caused by the negligence of the Noteflight Parties or otherwise, in connection with your use of the Service or your interaction with any party through or as a result of the Service, including any disputes that may arise between you and any other party as a result of your interaction with the Service or purchase or sale of any Score through the Service. In other words, you cannot sue the Noteflight Parties if anything happens to you or your property from using the Service or interacting with any party through the Service. You agree that the provisions in this Section 14 will survive any termination of your account(s), the Service, or this Agreement. Noteflight does not arbitrate any disputes, nor does Noteflight verify the copyright or any other status of any Score. Instead, Noteflight facilitates communication between disputing parties.
15. Indemnification. You agree to defend, indemnify and hold harmless the Noteflight Parties from and against all liability, claims, actions and expenses, including any claim brought by any Buyer against any Seller or by any Seller against any Buyer, including attorneys' fees and costs, arising out of your use of the Service or your breach or alleged breach of any term, condition, obligation, representation or warranty in this Agreement, including any representation or warranty with respect to infringement of the rights (including intellectual property rights of any kind) of any third party. You agree that the provisions in this paragraph will survive any termination of your account(s) the Service or this Agreement.
16. Copyright Policy; Objectionable Content: If you believe your rights have been violated by, or you otherwise object to, any posting, content or information on the Service, please contact us promptly so we can evaluate the claim and take appropriate action. If your complaint includes a claim of copyright infringement, our Copyright Infringement Policy will apply. It is Noteflight’s policy to respond promptly to claims of copyright infringement and to remove, or disable access to, infringing material (“Removal”). If you believe that any of the content or materials appearing on this Service contain infringements, please send a notice to our designated agent in accordance with our Copyright Infringement Policy.
18. Governing Law/Waiver of Injunctive Relief.
18.1. This Agreement and all aspects of the Service will be governed by and construed in accordance with the internal laws of the U.S. and the Commonwealth of Massachusetts governing contracts entered into and to be fully performed in Massachusetts (thus, without regard to conflict of laws provisions) regardless of your location. With respect to any disputes or claims not subject to informal dispute resolution or arbitration (as set forth below), you agree not to commence or prosecute any action in connection therewith other than in the state or federal courts located in Boston, Massachusetts, and you hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts located in Boston, Massachusetts.
18.2. You acknowledge that the rights granted and obligations made hereunder to Noteflight are of a unique and irreplaceable nature, the loss of which will irreparably harm Noteflight and which cannot be replaced by monetary damages alone, so that Noteflight will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief and agree to limit your claims to claims for monetary damages (if any).
18.3. To expedite resolution and control the cost of any dispute, controversy or claim related to this Agreement ("Dispute"), you and Noteflight agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations commence upon written notice from one person to the other. You will send your notice to firstname.lastname@example.org.
18.4. Mandatory Arbitration. If you and Noteflight are unable to resolve a Dispute through informal negotiations within thirty (30) days, either you or Noteflight may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Streamlined Arbitration Rules and Procedures (the “Rules”) of JAMS, which is available at the JAMS website www.jamsadr.com. The determination of whether a Dispute is subject to arbitration will be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation will be governed by the Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so.
18.5. Notwithstanding the above, you and Noteflight agree that arbitration will be limited to the Dispute between Noteflight and you individually. To the full extent permitted by law, (a) no arbitration will be joined with any other; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
18.6. You and Noteflight agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Noteflight’s intellectual property rights; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for injunctive relief or to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
19.1. The failure of Noteflight to require or enforce strict performance by you of any provision of this Agreement or to exercise any right under any provision of this Agreement will not be construed as a waiver or relinquishment of Noteflight’s right to assert or rely upon any such provision or right in that or any other instance.
19.2. You and Noteflight agree that if any portion of this Agreement, except any portion of Section 18.4, is found illegal or unenforceable, in whole or in part by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of this Agreement, which will continue to be in full force and effect. If Section 18.4 is found to be illegal or unenforceable, then neither you nor Noteflight will elect to arbitrate any Dispute falling within that portion of Section 18.4 found to be illegal or unenforceable and such Dispute will be decided by a court of competent jurisdiction within Boston, Massachusetts, and you and Noteflight agree to submit to the personal jurisdiction of that court.
20. Term and Termination. This Agreement will remain in effect as long as your account is up-to-date and you remain in compliance with the terms hereof, unless it has been voluntarily suspended or terminated by you or Noteflight. You may terminate this Agreement by destroying all Service-related materials obtained from the Service, Noteflight or any other web site or source. The privileges granted to you under this Agreement will terminate immediately and automatically without notice from Noteflight if, in our sole discretion, you fail to comply with any term or provision of this Agreement or for any reason in Noteflight’s sole discretion. Following the termination of this Agreement, your account(s) or the Service, Noteflight shall retain all rights to the Submissions pursuant to this Agreement.
22. Construction. In this Agreement, unless a clear contrary intention appears: (a) where not inconsistent with the context, words used in the present tense include the future tense and vice versa, and words in the plural number include the singular number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and includes all addenda, exhibits and schedules thereto; (e) the titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular Section or Subsection of this Agreement; and (g) “including” (and with correlative meaning, “include”) means including without limiting the generality of any description preceding such term. You agree that this Agreement will not be construed against Noteflight by virtue of Noteflight having drafted it.
24. Questions? If you have any questions about this Agreement, its terms, your account or your rights hereunder, or if you have any complaints or claims, please contact email@example.com.
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