Terms of Service
These Terms of Service (individually and together with the Community Guidelines, "Terms" or "Agreement") are between NotationPad Team. ("NotationPad", "NotationPad Team", "we", "our", "us") and you, an individual user ("you," "your," "yours"), and govern your use of NotationPad’s website or mobile software applications that have been made available on the Notation website or for download (each, an "App," and together, the Apps) and any related websites or other online properties owned or controlled by NotationPad Team (together with the Apps, the "Service").
1. INTRODUCTION AND OVERVIEW
These Terms constitute a legally binding contract between you and NotationPad.
You agree that by clicking on one of the "Sign Up" (Facebook, Email) or similar, registering, accessing or using the Apps or the Service, you are agreeing to enter into a legally binding contract with NotationPad (even if you are using our Apps or Service on behalf of a company). The Agreement includes these Terms and NotationPad’s Community Guidelines.
Read these Terms carefully. They govern your use of the Service and include legal provisions that limit our liability, including an arbitration clause that requires individual arbitration for certain potential legal disputes, where permitted by law. By installing the App or otherwise using any portions of the Service, you agree that you have read, understood, and agree to be bound by these Terms.
IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT USE ANY PORTION OF THE SERVICE.
As provided in greater detail in the Sections below (and without limiting the express language of these Terms), you:
- agree that the Service is licensed, not sold to you, and you may use the Service only as set forth in these Terms.
- agree that the use of the Service may be subject to separate third-party terms of service and fees, including, without limitation, your mobile network operator’s ("Carrier") terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility.
- agree that to the greatest extent permitted by law, NotationPad provides the Apps to you on an "as is" basis without warranties of any kind, and NotationPad’s liability to you is limited.
- agree that where permitted by law, disputes arising between you and NotationPad will be resolved by binding individual arbitration. By accepting these Terms, as provided in greater detail in Section 20 below, you and NotationPad are each waiving the right to a trial by jury or to participate in a class action.
- agree to the "Notice Regarding Apple" in Section 27 below.
- agree that if you Post (defined below in Section 10.a) any Objectionable Content (defined below in Section 10.i) on the Service or otherwise violate these Terms , then NotationPad may—but has no obligation to—take any remedial action that NotationPad, in its sole discretion, deems appropriate, such as, without limitation, suspending or terminating your Account (defined below in Section 8), removing all of your User Content (defined below in Section 10.a) from the Service, and/or reporting you to law enforcement authorities, either directly or indirectly.
2. ELIGIBILITY TO USE THE SERVICE
Our Service is intended for general audiences. No one under 4 is allowed to use the Service.
TO USE THE SERVICE, YOU MUST BE AT LEAST 4 YEARS OF AGE OR SUCH OLDER AGE AS PRESCRIBED BY THE LAW OF THE PLACE WHERE YOU LIVE. IF YOU ARE UNDER 4 YEARS OF AGE, OR UNDER ANY HIGHER AGE OF CONSENT PRESCRIBED BY YOUR LOCAL LAW, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER.
By registering an account with NotationPad, you represent and warrant that (1) you are at least 4 years old if you reside in the United States, are at least 16 years old if you reside in the European Economic Area, or are such older age as prescribed by the law of the place where you live; (2) that you have a parent or legal guardian’s consent to this Agreement or are eligible to form a binding contract with NotationPad; (3) you will comply with these Terms; (4) your use of the Service does not violate applicable law; and (5) you have not been previously suspended or removed from the Service by NotationPad.
3. CHANGES TO THESE TERMS
We may change these Terms from time to time.
You may read the current, effective version of these Terms at any time at this location, or by clicking the Terms link at the bottom of the NotationPad website or by clicking Terms of Service in the App.
We will try to notify you of any material changes either within the App or through an email to the address associated with your account prior to the modifications becoming effective. The revised Terms will become effective at the time of posting.
BY CONTINUING TO USE THE SERVICE AFTER THE CHANGES BECOME EFFECTIVE, YOU AGREE TO THE REVISED TERMS.
4. CHANGES TO THE SERVICE
We are continually evolving our Service. We therefore expressly reserve the right to change, add to, suspend, discontinue, or retire any aspect of the Service at any time without prior notice. If we update the Service and you object to such change for any reason, your sole remedy is to stop using the Service.
6. COMMUNITY GUIDELINES
To keep our community fun, safe, and enjoyable, your use of the Service is subject to our Community Guidelines, which are part of these Terms.
7. YOUR USE OF THE SERVICE
NotationPad provides you with access to the Service free of charge, but to enjoy the full benefits of the Service and certain features or functionality, you must purchase related items access to the Service.
8. YOUR ACCOUNT
- Registration. While you may always browse any public-facing portions of the Service without registering with NotationPad, to enjoy the full benefits of the Service, you must download the Apps or access the NotationPad website and register an account with NotationPad ("Account").
- Account Security. You are fully responsible for all activities that occur through your Account, so you should keep it secure. You agree to notify NotationPad immediately at firstname.lastname@example.org if you suspect or know of any unauthorized use of your Account or any other breach of security with respect to your Account. NotationPad will not be liable for any loss or damage arising from unauthorized use of your Account.
- Accuracy of Information. When creating an Account, provide true, accurate, current, and complete information as NotationPad requests. Update such information promptly, and as necessary to keep it current and accurate. You represent to NotationPad that the information provided upon the creation of your Account is accurate and that any email address you provide is an email address controlled by you. NotationPad reserves the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by NotationPad in its sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in NotationPad's sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the Service, infringe or violate any third-party rights, damage NotationPad's reputation, or violate any applicable laws or regulations. If messages sent to the e-mail address you provide are returned as undeliverable, then NotationPad may terminate your Account immediately without notice to you and without any liability to you or any third party.
9. NotationPad CONTENT AND RIGHTS GRANTED TO YOU
- License. Subject to your complete and ongoing compliance with these Terms, NotationPad grants you a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, and worldwide right and license to use the Service. Pursuant to this license, you may: (i) download, access, and use an object code version of the Apps on any device that you own or control; and (ii) access and use the Service, solely for your personal, non-commercial use.
- NotationPad Content. Except for User Content (as defined in Section 10.a below), the content that NotationPad provides to Users on or through the Service, including, without limitation, any sound recordings (and the musical works embodied therein), video, text, graphics, photos, software, and interactive features, is protected by copyright or other intellectual property rights and owned by NotationPad or its third-party licensors (collectively, "NotationPad Content"). NotationPad Content is exclusively for use as part of the NotationPad Service and may not be exported outside of the NotationPad Service, except as explicitly permitted and endorsed by NotationPad. Any attempt to circumvent this provision is a violation of these Terms. NotationPad also solely owns all design rights, databases and compilations, and other intellectual property rights in and to the Service, in each case whether registered or unregistered, and any related goodwill.
- NotationPad Marks. The NotationPad trademarks, service marks, and logos (collectively, the "NotationPad Trademarks") used and displayed on the Service are NotationPad’s registered and/or unregistered trademarks or service marks. Any other product and service names located on any part of the Service may be trademarks or service marks owned by third parties (collectively with the NotationPad Trademarks, the "Trademarks"). Except as otherwise permitted by law, you may not use the Trademarks to disparage NotationPad or the applicable third party, or in any manner that may damage any goodwill in the Trademarks. You may not use any Trademarks as part of a link to or from any website without NotationPad’s prior express written consent. All goodwill generated from the use of any NotationPad Trademark will inure solely to NotationPad’s benefit.
- Reservation of Rights. NotationPad hereby reserves all rights not expressly granted to you in this Section 9. Nothing in these Terms or on the Service will be construed as granting to you additional license rights in and to the Service or any NotationPad Content or Trademarks.
10. USER CONTENT AND RIGHTS YOU GRANT TO NotationPad
- "User Content" means any content that you or other Users upload, post, or transmit to or through the Service (collectively, "Post") including, without limitation, photographs, text, sound recordings, musical works, or audiovisual works, and any other works subject to protection under the laws of the United States or any other jurisdiction, including, without limitation, patent, trademark, trade secret, and copyright laws. For clarity, User Content excludes any and all NotationPad Content. You may Post User Content and otherwise use and enjoy its various functionalities, subject to these Terms.
- Ownership. SUBJECT TO ANY THIRD-PARTY RIGHTS IN ANY PREEXISTING CONTENT THAT IS A PART OF YOUR USER CONTENT AND SUBJECT TO THE LICENSE YOU GRANT TO NotationPad, YOU RETAIN OWNERSHIP OF ANY RIGHTS YOU MAY HAVE IN YOUR USER CONTENT, AND POSTING YOUR USER CONTENT DOES NOT TRANSFER OWNERSHIP OF YOUR RIGHTS.
- Enforcement Rights. As part of your license to NotationPad, you give NotationPad the right to enforce any copyrights you possess in your User Content against any third parties who copy, reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit from External Sites, or otherwise exploit and use, the User Content without NotationPad’s consent, including by using the Service or otherwise downloading your User Content off of the App or website.
- You Must Have Rights to the Content You Post. By Posting User Content, you represent and warrant that you own or are fully authorized to grant the license set forth in these Terms in all elements of the User Content. For example, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Post such sound recordings unless you have all necessary rights, authorizations, and permissions with respect to such embedded musical works that grant you sufficient rights to grant the license to NotationPad under these Terms. You further represent and warrant that: (i) the Posting and Use of your User Content does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any party; (ii) the Posting of your User Content will not require NotationPad to obtain any further licenses from or pay any royalties, fees, compensation or other amounts, or provide any attribution to any third parties; and (iii) the Posting of your User Content does not result in a breach of contract between you and a third party. You agree to pay all monies owing to any person as a result of User Content you Post.
- Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a performing rights organization ("PRO"), then you must notify your PRO of the royalty-free license you grant to NotationPad through these Terms. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license set forth in these Terms or have such music publisher enter into this Agreement with NotationPad. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant NotationPad the license in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label.
- Through-To-The-Audience Rights. All of the rights you grant in this Agreement are provided on a through-to-the-audience basis, meaning the owners or operators of External Sites will not have any separate liability to you or any other third party for User Content Posted or Used on such External Sites via the Service.
- Waiver of Rights to User Content. By Posting User Content, you waive any rights to prior inspection or approval of any marketing or promotional materials related to such User Content. You also waive any and all rights of privacy, publicity, or any similar rights in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in any User Content you Post.
- Objectionable Content. You agree not to Post any User Content that could be interpreted in NotationPad’s sole discretion to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar, (ii) in violation of any applicable laws, (iii) putting other Users’ data privacy and security at risk; (iv) promoting any product, good or service; (v) promoting bigotry, discrimination, hatred, intolerance, or racism; or (vi) inciting violence (collectively, "Objectionable Content"). The Posting of any Objectionable Content may subject you to third-party claims and none of the rights granted to you in these Terms may be raised as a defense against any third-party claims arising from your Posting of Objectionable Content. NotationPad in its sole discretion may take any actions it deems necessary and/or appropriate against any User who Posts Objectionable Content, including, without limitation, warning the User, suspending or terminating the User’s Account, removing all of the User’s User Content, and/or reporting the User to law enforcement authorities, either directly or indirectly.
- Screening Content. NotationPad does not pre-screen any User Content, but reserves the right to remove or delete any User Content in its sole discretion. In addition, NotationPad has the right—but not the obligation—in its sole discretion to remove or delete any User Content: (i) that NotationPad considers to violate these Terms or applicable law; (ii) that NotationPad considers to be Objectionable Content; or (iii) in response to complaints from other Users, licensors of any NotationPad Content, or rights holders related to the User Content, with or without notice and without any liability from NotationPad to you. NotationPad also has the right—but not the obligation—to take remedial action in connection with any Objectionable Content Posted as described more fully in the Community Guidelines. NotationPad recommends that you save copies of any User Content that you Post on your personal device(s) to the extent you want to ensure permanent access to copies of such User Content.
- User Content Posted by Others. Although NotationPad reserves the right to review or remove any User Content, we do not review all User Content, and we take no responsibility for the User Content that appears on the Service. User Content is the sole responsibility of the person or entity that Posts the User Content. As reflected in these Terms and in our Community Guidelines, we have no tolerance for Objectionable Content, and we do not want our Service put to any improper use, but we cannot guarantee that all User Content will always conform to these Terms. If you encounter any Objectionable Content on the Service, please immediately email NotationPad at email@example.com. NotationPad provides you with the ability to report Objectionable Content as a courtesy, and NotationPad has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that you report to NotationPad.
- No Liability. For the avoidance of doubt, NotationPad will not be liable for any use or misuse of User Content by any User.
- Feedback. If you choose to provide NotationPad with input or suggestions regarding problems with or proposed modifications, enhancements or improvements to the Service ("Feedback"), including but not limited to any Feedback you provide if NotationPad invites you to participate in new product functionality testing, then you hereby grant to NotationPad a perpetual, irrevocable, non-exclusive, fully-paid, and royalty-free right to use and exploit the Feedback in any manner and for any purpose without any restriction, credit, attribution, or fees due to you
11. EXTERNAL SITES
Although the Service may contain links to or the ability to share information with third-party websites ("External Sites"), NotationPad does not endorse any External Sites. NotationPad is also not responsible for the content of any External Sites and does not make any representations regarding the content on such External Sites. All External Sites are developed and provided by others. The External Sites may have their own terms of service and privacy policies, and your use of those External Sites will be governed by and subject to such terms of service and privacy policies. You should contact the site administrator or webmaster for those External Sites if you have any questions or concerns regarding any content located on such External Sites or the terms governing your use of such External Sites.
If you decide to access any External Sites, purchase any content from External Sites, or subscribe to services offered by such External Sites, then you do so at your own risk. You agree that NotationPad will have no liability to you arising from your use or interaction with any External Sites.
12. CONSENT TO COMMUNICATIONS
If you registered for the Service using your telephone number or have updated your account information to provide your telephone number to us, you acknowledge and agree that we may send you notifications via text (SMS) messages at the telephone number associated with your account, until you notify us that you no longer wish to receive these messages. You acknowledge that you are not required to consent to receive promotional text messages as a condition of using the Service.
THE FREQUENCY OF ELECTRONIC COMMUNICATIONS (INCLUDING PUSH NOTIFICATIONS ON YOUR MOBILE DEVICE) WILL VARY BASED ON THE KINDS OF NOTIFICATIONS YOU SIGN UP TO RECEIVE AND YOUR USE OF THE SERVICE. STANDARD TEXT MESSAGING RATES APPLY (INCLUDING WHERE APPLICABLE ROAMING CHARGES), SO PLEASE CONTACT YOUR MOBILE PHONE CARRIER FOR DETAILS AND FEES. YOU WILL BE RESPONSIBLE FOR ALL TEXT MESSAGING AND DATA PLAN FEES CHARGED BY YOUR MOBILE PHONE SERVICE.
13. TERM AND TERMINATION
- Term. This Agreement, which commences upon your use of the Service, will continue to apply to you until terminated by either you or NotationPad.
- You may terminate this Agreement at any time by sending written notification to NotationPad at firstname.lastname@example.org, subject to your terminating all use of the service.
- NotationPad may terminate this Agreement at any time with or without notice to you. NotationPad also reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to the Service at any time if you breach any provision of this Agreement or violate the rights of any third-party copyright owner.
- Survival. Sections 2-4, 6-7, 8.b, 9.b, 9.c, 9.d 10-11, 13-23, 25-29, and all defined terms used therein, shall survive any termination of these Terms indefinitely.
14. VIRTUAL CURRENCY
The following terms apply to the extent permitted under law:
- Currency. You may be able to earn virtual currency for certain achievements attained within the Service ("Currency"). NotationPad determines and controls the availability and nature of Currency in its sole discretion. Accordingly, you agree that NotationPad may terminate, modify, revalue, or make Currency more or less available without any notice or liability to you. You may not rely on continued availability of any Currency. NotationPad also determines the amount of your Currency balance in its sole discretion.
- Ownership. NotationPad provides Currency to you under a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable, and worldwide license to redeem such Currency solely to purchase digital goods available within the Service ("Goods"). Accordingly, except as set forth in the prior sentence, NotationPad owns and retains all rights, title, and interest in and to Currency.
- Redemption. The amount of Currency needed to obtain Goods will be displayed at the point of redemption. Currency is not real money and does not have any monetary value. Currency may only be redeemed to obtain Goods and cannot be combined or used in conjunction with other promotions, coupons, discounts, or special offers from NotationPad unless NotationPad expressly states otherwise in writing. Upon redemption of any Currency, the amount available in your Account will be reduced by the amount redeemed.
- Replacements. NotationPad may redistribute previously obtained copies of Goods, if, in its sole determination, the purchaser received corrupted or otherwise damaged Goods. If Goods you have purchased or received are corrupted or otherwise damaged, then please send an email explaining the problem and the circumstances under which such problem arose to email@example.com. NotationPad has the sole discretion to terminate the Account of any User that NotationPad suspects to be abusing the right to seek replacement Goods. Except as set forth in the preceding sentences of this Section, NotationPad is not responsible for replacing any of your Goods or providing you with any credit for any Goods.
- No Transfers. Currency and Goods may not be sold, assigned, or transferred to any third party under any circumstances whatsoever (including, without limitation, by operation of law) unless NotationPad expressly preapproves the transfer in writing, and any sale, assignment, or transfer of Currency or Goods to any third party without such consent will be void. If a User violates this Section, then NotationPad may, in its sole discretion: (i) terminate the offending User’s Account; (ii) require the offending User to forfeit all Goods purchased and/or Currency obtained; and/or (iii) pursue any and all remedies that NotationPad deems advisable and hold the offending User liable for any and all damages, expenses, or other losses that NotationPad incurs in connection with the violation.
- Forfeiture. If your Account is terminated for any reason, then you automatically will forfeit all Currency and Goods associated with that Account permanently. NotationPad also reserves the right to terminate your Account and all associated Currency and Goods if your Account has been inactive for 180 days.
15. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
- Respect of Third-Party Rights. NotationPad respects the intellectual property of others and takes the protection of intellectual property very seriously. We ask you to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. We will (i) remove or disable access to material made available on or through the Service that NotationPad believes in good faith, upon notice from an intellectual property owner or his or her agent, to be infringing the intellectual property of a third party; and (ii) remove any User Content uploaded to the Service by "repeat infringers." NotationPad considers a "repeat infringer" to be any User that has Posted User Content and for whom NotationPad has received more than two takedown notices with respect to such User Content. NotationPad has discretion, however, to terminate the Account of any User after receipt of a single notification of claimed infringement or upon NotationPad’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a "Notification of Claimed Infringement" containing substantially the following information to NotationPad’s Designated Agent identified below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific 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 NotationPad to locate the material;
- Information reasonably sufficient to permit NotationPad to contact you, such as an address, telephone number and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law;
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.
You should consult with your own lawyer to confirm your obligations to provide a valid notice of claimed infringement.
We may share the Notification of Claimed Infringement with the User alleged to have infringed a right you own or control, and you hereby consent to NotationPad making such disclosure.
- Designated Agent Contact Information. NotationPad’s Designated Agent can be contacted at:
- Via E-mail: firstname.lastname@example.org
- Via China Mail: NotationPad Team, ATTN: Copyright, Notation Pad Team
- Counter Notification. If you receive a notification from NotationPad that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide NotationPad with what is called a "Counter Notification." To be effective, a Counter Notification must be in writing, provided to NotationPad’s Designated Agent through one of the methods identified in Section 15.d., and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- The subscriber’s name, address and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, then for any judicial district in which NotationPad may be found, and that the subscriber will accept service of process from the person who provided notification under Section 15.c above or an agent of such person.
A party submitting a Counter Notification should consult a lawyer to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to NotationPad in response to a Notification of Claimed Infringement, then NotationPad will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that NotationPad will replace the removed User Content or cease disabling access to it in 10 business days, and NotationPad will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless NotationPad’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material on NotationPad’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
Any person who knowingly materially copyright (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [NotationPad] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
NotationPad reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
16. MOBILE SERVICES
The Service will be accessible via a mobile phone, tablet, or other wireless device (collectively, "Mobile Services"). Your mobile carrier’s normal messaging, data, and other rates and fees will apply to your use of the Mobile Services. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your mobile carrier, and not all Mobile Services may work with all carriers or devices.
You are solely responsible for checking with your mobile carrier to determine if the Mobile Services are available for your mobile device(s), what restrictions, if any, may apply to your use of the Mobile Services, and how much your use of the Mobile Services will cost you.
17. WARRANTY DISCLAIMER
We make a significant effort to provide the best Service we can, but we make no promises, representation, warranties, or guarantees that the Service will operate as intended. Errors or other interruptions may cause the Service to not function as intended. By using the Service, you understand and accept this risk.
NEITHER NotationPad NOR ITS AFFILIATES (COLLECTIVELY, "NotationPad") MAKE ANY WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE AND ANY CONTENT AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS APPROPRIATENESS, TIMELINESS, OR RELIABILITY THEREOF. NotationPad WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT ON THE SERVICE, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
NotationPad DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, NO NotationPad PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
THE SERVICE AND ALL CONTENT THEREON ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, TO THE GREATEST EXTENT PERMITTED BY LAW NotationPad DISCLAIMS ALL WARRANTIES THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
18. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW:
NotationPad, OUR LICENSORS, OUR LICENSEES, AND OUR SERVICE PROVIDERS (COLLECTIVELY, "NotationPad PARTIES") SHALL NOT BE LIABILE FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXTRAORDINARY, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER ARISING OUT OF, RELATING TO, OR RESULTING FROM YOUR USE OR INABILITY TO USE OR ACCESS THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
NotationPad’S LIABILITY, AND THE LIABILITY OF ANY OTHER NotationPad PARTIES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF U.S. $100 OR THE TOTAL AMOUNT YOU HAVE PAID NotationPad FOR SUBSCRIPTION-BASED ACCESS TO THE SERVICE AS OF THE DATE OF THE APPLICABLE CLAIM.
ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICE, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE NotationPad PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
19. GOVERNING LAW
This Agreement is governed by the substantive laws of the State of California without regard to its laws that would direct the choice of any other state’s laws.
If you are a consumer who lives in the EU, this Section 19 is without prejudice to any rights you may have under mandatory law which cannot be varied by contractual choice of law.
This Section 20 does not apply if you reside in the European Economic Area or in another jurisdiction which prohibits mandatory arbitration clauses in consumer contracts.
- In the interest of resolving disputes between you and NotationPad in the most expedient and cost effective manner, you and NotationPad agree that any dispute arising out of or in any way related to this Agreement or your use of the Service will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND NotationPad ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
- Exceptions. Notwithstanding Section 20.a above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between you and NotationPad will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting NotationPad. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by China Mail ("Notice"). NotationPad's address for Notice is: NotationPad Team., ATTN: Community, 17 Hao Yuan, Xiao Ying Dong Lu, Haidian, Beijing. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or NotationPad may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or NotationPad must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor with a monetary award, NotationPad will pay you the highest of the following: (1) the amount awarded by the arbitrator, if any; or (2) the last written settlement amount offered by NotationPad in settlement of the dispute prior to the arbitrator's award.
- Fees. If you commence arbitration in accordance with these Terms, NotationPad will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco, California, but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance-based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse NotationPad for all monies previously disbursed that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- Waiver of Class Actions. YOU AND NotationPad 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 PROCEEDING. Further, unless both you and NotationPad agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
- Waiver of Jury Trial. YOU AND NotationPad AGREE TO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JURY. You and NotationPad are instead electing to have claims and disputes resolved by arbitration. In any litigation between you and NotationPad over whether to vacate or enforce an arbitration award, YOU AND NotationPad WAIVE ALL RIGHTS TO A JURY TRIAL.
- Modifications to this Arbitration Provision. Except as otherwise provided in this Agreement, if NotationPad makes any future change to this arbitration provision, other than a change to NotationPad’s address for Notice, you may reject the change by sending NotationPad written notice within 30 days of the change to NotationPad’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and NotationPad.
- Opt-out. You may opt out of this arbitration agreement. If you do so, neither you nor NotationPad can force the other to arbitrate. To opt out, you must notify NotationPad in writing no later than 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your NotationPad username and the email address you used to set up your NotationPad account (if you have one), and an unequivocal statement that you want to opt out of this arbitration agreement. You must either mail your opt-out notice to this address: NotationPad, Inc., ATTN: Arbitration Opt-out, 17 Hao Yuan, Xiao Ying Dong Lu, Haidian, Beijing, or email the opt-out notice to email@example.com.
- Enforceability. If Section 20.f above is found to be unenforceable, then the entirety of this Section 20 will be null and void. If this Arbitration Provision is invalidated in whole or in part, Section 21 shall govern any claim in court arising out of or relating to these Terms or your use of the Service.
To the extent a claim, dispute, or controversy arises out of or in connection with these Terms or your use of the Service that is not subject to mandatory arbitration under Section 20, both you and NotationPad agree that all such claims and disputes will be litigated exclusively in the United States District Court for the Northern District of California. If that court would lack original jurisdiction over the litigation, then such claims and disputes will be litigated exclusively in the Superior Court of California, County of San Francisco. You and NotationPad consent to the personal jurisdiction of both courts.
22. TIME FOR FILING
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT ANY CLAIM AGAINST NotationPad MUST BE COMMENCED BY FILING A DEMAND FOR ARBITRATION UNDER SECTION 20 (OR BY FILING AN ACTION UNDER SECTION 21 TO THE EXTENT SECTION 20 DOES NOT APPLY) WITHIN ONE YEAR AFTER THE DATE THE PARTY ASSERTING THE CLAIM FIRST KNOWS OR REASONABLY SHOULD KNOW OF THE ACT, OMISSION, OR DEFAULT GIVING RISE TO THE CLAIM. YOU AGREE THAT THERE SHALL BE NO RIGHT TO ANY REMEDY FOR ANY CLAIM NOT ASSERTED WITHIN THAT TIME PERIOD.
To the fullest extent permitted by law, you agree to defend, indemnify, and hold NotationPad harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (a) your breach of this Agreement; (b) your access to, use, or misuse of NotationPad Content or the Service; or (c) your User Content.
NotationPad will provide notice to you of any such claim, suit, or proceeding. NotationPad reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section if NotationPad believes that you are unwilling or incapable of defending NotationPad’s interests. In such case, you agree to cooperate with any reasonable requests assisting NotationPad’s defense of such matter at your expense.
24. ADDITIONAL TERMS
From time to time, NotationPad may require you to agree to additional terms and/or policies that it makes available to you in connection with your use of the Service or in connection with a special promotion ("Additional Terms"). Except as expressly stated otherwise, such Additional Terms are hereby incorporated into and subject to this Agreement. This Agreement will control in the event of any conflict or inconsistency with the Additional Terms to the extent of the conflict or inconsistency.
If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect.
26. LOCAL LAWS
We control and operate the Service from NotationPad’s offices in the State of California. NotationPad makes no representation that materials on the Service are appropriate, lawful, or available for use in any locations other than the United States of America. Those who choose to access or use the Service from locations outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the content or practices of the Service are illegal, unauthorized, or penalized is strictly prohibited.
27. NOTICE REGARDING APPLE
If you are using the Apps on an iOS-based device, you acknowledge that this Agreement is between you and NotationPad only, not with Apple, and Apple is not responsible for the Apps or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apps. In the event of any failure of any App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Apps. Apple is not responsible for addressing any claims by you or any third party relating to the Apps or your possession and/or use of the Apps, including, but not limited to: (i) product liability claims; (ii) any claim that any App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that any App or your possession and use of any App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Apps. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary of this Agreement.
- If NotationPad provides a translation of the English language version of this Agreement, then the translation is provided solely for convenience, and the English version will prevail.
- You agree that no joint venture, partnership, employment, or agency relationship exists between you and NotationPad as a result of this Agreement or your use of the Service.
- Failure of NotationPad to act on or enforce any provision of this Agreement will not be construed as a waiver of that provision or any other provision in this Agreement.
- No waiver will be effective against NotationPad unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.
- Except as expressly agreed by NotationPad and you, these Terms constitute the entire agreement between you and NotationPad with respect to the subject matter hereof, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.
- The Section headings herein are provided merely for convenience and will not be given any legal import.
- This Agreement will inure to the benefit of NotationPad’s successors and assigns.
- You may not assign this Agreement or any of the rights or licenses granted hereunder, directly or indirectly, without the prior express written consent of NotationPad. NotationPad may assign this Agreement, including all its rights hereunder, without restriction.
29. CONTACT US
If you would like to contact NotationPad in connection with your use of the Service, you may reach out by mail at NotationPad Team, ATTN: Community, 17 Hao Yuan, Xiao Ying Dong Lu, Haidian, Beijing, China, and by email at firstname.lastname@example.org.