Terms and Conditions
Please read this Agreement carefully before accessing or using the Website and mobile Applications. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website and mobile Applications or use any services. If these terms and conditions are considered an offer by PhonicScore, acceptance is expressly limited to these terms. The Services are available only to individuals who are at least 13 years old.
Your Practice Bird Account and Services
If you create an account on the Website or mobile Applications, you are responsible for maintaining the security of your account and content, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must not create content in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and PhonicScore may change or remove any content that it considers inappropriate or unlawful, or otherwise likely to cause PhonicScore liability. You must immediately notify PhonicScore of any unauthorized uses of our service, your account or any other breaches of security. PhonicScore will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
RESPONSIBILITY OF CONTRIBUTORS
If you own a Practice Bird account, comment on any created content, post material to the Website and mobile Applications, post links on the Website and mobile Applications, or otherwise make (or allow any third party to make) material available by means of the Website and mobile Applications (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, or computer software.
By making Content available, you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either
(i) received permission from your employer to post or make available the Content, including but not limited to any software, or
(ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party;
- your Practice Bird account and content is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;
- your Practice Bird account and content is not named in a manner that misleads other Practice Bird users, your followers and readers into thinking that you are another person or company. For example, your Practice Bird account’s URL or name is not the name of a person other than yourself or company other than your own; and you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by PhonicScore or otherwise.
By submitting Content to Practice Bird for inclusion on your Website and mobile Applications, you grant PhonicScore a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt, publish the Content solely for the purpose of displaying, distributing and promoting your account and Content and anonymously use the practice data behind your Content to offer additional services for you and other users (especially including a advanced statistics, benchmarks and recommendation services). If you delete Content, PhonicScore will use reasonable efforts to remove it from the Website and mobile Applications, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
Without limiting any of those representations or warranties, PhonicScore has the right (though not the obligation) to, in PhonicScore’s sole discretion (i) refuse or remove any content that, in PhonicScore’s reasonable opinion, violates any PhonicScore policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website and mobile Applications to any individual or entity for any reason, in PhonicScore’s sole discretion. PhonicScore will have no obligation to provide a refund of any amounts previously paid.
PAYMENT AND RENEWAL
Optional paid services such as certain sheet music collections, access to sheet music, realt-time transposing etc. or any other paid services are available on selected PhonicScore applications on the Website and on mobile devices (any such services, an “Upgrade”). By selecting an Upgrade you agree to pay PhonicScore the one-time fee or the monthly, 3-month, 6-month, annual subscription fees indicated for that service and become a customer. All Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service as long as you have a Practice Bird account for one-time payment services and for a monthly or annual subscription period if you choose a subscription service, as indicated. Upgrade fees are not refundable. Prices of Upgrades may vary between countries and actual charges may be converted to local currency. After a subscription period prices may be adapted accordingly to service costs, currency exchange rate and rate of inflation.
UNLIMITED PLANS AND FAIR USE POLICY
All unlimited Upgrade offers of storage or uploads are subject to our fair use policy. At PhonicScore, our goal is to give each customer the best service possible at the best value. We are always striving to develop programs and policies to make that possible. Our Fair Use Policy is designed to help ensure the best service for the vast majority of our customers at the best and fairest price possible for both PhonicScore and the customer, while minimizing any inconvenience caused by our storage and upload management practices. To ensure that all customers have equally access to the Practice Bird storage and network included in any Upgrade, PhonicScore has established usage levels that limit the amount of data that a customer can store and upload within stated periods of time, as described further below.
If a customer uploaded more than 100GB to the Practice Bird storage, measured from the start date of a user’s agreement, PhonicScore may at its option stop uploads and storing data from this customer or offer the customer to continue by offering an extension of the Upgrade in return for additional charge at any time.
PhonicScore may also take action in the manner described below where we become aware that a customer has breached this Fair Use Policy by engaging in Improper Use or Excessive Use of services offered by PhonicScore. “Improper Use” means any use of the services which is illegal, infringes anyone’s rights (including intellectual property rights), is malicious, obscene, and offensive or otherwise causes damage or harm to PhonicScores and/or our other customers. “Excessive Use” means, in relation to unlimited storage or uploads included in any Upgrade, use of services which significantly exceeds normal customer usage patterns. Specific activities that may result in Excessive Use of unlimited Upgrade offers of storage or uploads include, without limitation: excessive video or photo uploads/storage or any other means of causing excessive data traffic/storage, like exceeding an update volume of 1GB per day.
A violation of this policy is reason for termination of your Upgrade without notice in PhonicScore’s sole discretion.
PhonicScore may revise this Fair Use Policy from time to time by posting a new definition in this document. All revised copies of this Fair Use Policy are effective immediately upon posting. Accordingly, customers should regularly visit this website on PracticeBird.com.
Unless you notify PhonicScore 24 hours before the end of the applicable subscription period that you want to cancel an Upgrade, your Upgrade subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. You can manage, upgrade, downgrade and cancel your Upgrades in Account Settings in iTunes Store for PhonicScore iOS applications, Settings in Google Play Store for PhonicScore Android applications, Account Settings on services offered in PhonicScore web applications.
RESPONSIBILITY OF WEBSITE AND MOBILE APPLICATION VISITORS/USERS
PhonicScore has not reviewed, and cannot review, all of the material, including computer software, posted to the Website and mobile Applications, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website and mobile Applications, PhonicScore does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website and mobile Applications may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website and mobile Applications may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. PhonicScore disclaims any responsibility for any harm resulting from the use by visitors/users of the Website and mobile Applications, or from any downloading by those visitors/users of content posted.
CONTENT POSTED ON OTHER WEBSITES AND MOBILE APPLICATIONS
We have not reviewed, and cannot review, all of the material, including computer software, made available through the Websites and mobile Applications and web pages to which Practice Bird links, and that link to Practice Bird. PhonicScore does not have any control over those non-PhonicScore Websites and mobile Applications and web pages, and is not responsible for their contents or their use. By linking to a non-PhonicScore Website and mobile Applications or webpage, PhonicScore does not represent or imply that it endorses such Website and mobile Applications or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. PhonicScore disclaims any responsibility for any harm resulting from your use of non-PhonicScore Websites and mobile Applications and webpages.
COPYRIGHT INFRINGEMENT AND DCA POLICY
As PhonicScore asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Practice Bird violates your copyright, you are encouraged to notify PhonicScore in accordance with PhonicScore’s Digital Copyright Act (“DCA”) Policy. PhonicScore will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. PhonicScore will terminate a visitor’s/users’s access to and use of the Website and mobile Applications if, under appropriate circumstances, the visitor/user is determined to be a repeat infringer of the copyrights or other intellectual property rights of PhonicScore or others. In the case of such termination, PhonicScore will have no obligation to provide a refund of any amounts previously paid to PhonicScore. Intellectual Property. This Agreement does not transfer from PhonicScore to you any PhonicScore or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with PhonicScore. PhonicScore, PhonicScore, Practice Bird, the Practice Bird logo, and all other trademarks, service marks, graphics and logos used in connection with Practice Bird, or the Website and mobile Applications are trademarks or registered trademarks of PhonicScore or PhonicScore’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website and mobile Applications may be the trademarks of other third parties. Your use of the Website and mobile Applications grants you no right or license to reproduce or otherwise use any PhonicScore or third-party trademarks.
PhonicScore reserves the right to display advertisements on PhonicScore’s websites or Mobile apps unless you have purchased an Ad-free Upgrade.
PhonicScore reserves the right to display attribution links such as ‘Practice Bird’ on the Website and mobile Applications.
Linking PhonicScore services with other services
By linking your PhonicScore account with other accounts you own at third party providers such as Facebook, Twitter, Pinterest, Instagram, you agree to the terms of service of those providers. You can opt out of their terms of service at any time by de-connecting your Practice Bird account from your accounts that you have there.
PhonicScore reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website and mobile Applications following the posting of any changes to this Agreement constitutes acceptance of those changes. PhonicScore may also, in the future, offer new services and/or features through the Website and mobile Applications (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
PhonicScore may terminate your access to all or any part of the Website and mobile Applications at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your Practice Bird account (if you have one), you may simply discontinue using the Website and mobile Applications. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Disclaimer of Warranties. The Website and mobile Applications are provided “as is”. PhonicScore and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither PhonicScore nor its suppliers and licensors, makes any warranty that the Website and mobile Applications will be error free or that access thereto will be continuous or uninterrupted. If you’re actually reading this, here’s a treat. You understand that you download from, or otherwise obtain content or services through, the Website and mobile Applications at your own discretion and risk.
LIMITATION OF LIABILITY
In no event will PhonicScore, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for:
(i) any special, incidental or consequential damages;
(ii) the cost of procurement for substitute products or services;
(iii) for interruption of use or loss or corruption of data; or
(iv) for any amounts that exceed the fees paid by you to PhonicScore under this agreement during the twelve (12) month period prior to the cause of action.
PhonicScore shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
General Representation and Warranty
You represent and warrant that
(ii) your use of the Website and mobile Applications will not infringe or misappropriate the intellectual property rights of any third party.
You agree to indemnify and hold harmless PhonicScore, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website and mobile Applications, including but not limited to your violation of this Agreement.
This Agreement constitutes the entire agreement between PhonicScore and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of PhonicScore, or by the posting by PhonicScore of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website and mobile Applications will be governed by the laws of the republic of Austria and the EU, excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the county court of the first district in Vienna, Austria or the commercial court located in Vienna, Austria. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Vienna, Austria, in German language. The arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; PhonicScore may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
If any provision in these terms are held to be invalid, void, or unenforceable, such provision (or the part of it that is making it invalid, void or unenforceable) will be struck and not affect the validity of and enforceability of the remaining provisions.
February 12, 2018: Published Terms of Service