SmartMusic® Terms of Service

Last Updated on: October 29th, 2019.

THESE SMARTMUSIC® TERMS OF SERVICE ARE LEGALLY BINDING. IF YOU ACCESS OR USE THE SMARTMUSIC SERVICES IN ANY MANNER, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS POLICY. IF YOU DO NOT AGREE TO BE BOUND, YOU MAY NOT USE THE SMARTMUSIC SERVICES.

This SmartMusic® End User License & Subscriber Agreement (the "Agreement") governs the terms of use of the SmartMusic® music education Services and all related features/Services (the "SmartMusic Services" or "Services"). This Agreement becomes effective when you acknowledge your acceptance of the terms during registration, or when you otherwise access or use any part of the SmartMusic Services.

  1. Definition. In the context of this Agreement, "SmartMusic" refers to the SmartMusic Services offered to users on the web and any related downloadable applications that allow for online accessibility to the SmartMusic Services. This Agreement does not apply to the SmartMusic downloadable software Program that must be installed on a user’s computer.
  2. Background & Purpose of this Agreement. MakeMusic, Inc. ("MakeMusic" or "we" or "us") provides the SmartMusic Services to end users, who include individuals, schools, students, educators and others ("you, user"). This Agreement is intended to protect MakeMusic's rights in its proprietary software and related Services and features. It also sets forth the restrictions and permissible uses of the SmartMusic Services by others. MakeMusic is providing you with access to the SmartMusic Services only if you agree with the terms and conditions of this Agreement.
  3. Revisions. From time to time, MakeMusic, Inc. may change the terms of this Agreement. If we make a material change to this Agreement, we will post a notice on the login or homepage of the SmartMusic services. Changes will also appear in this document, which you can access at any time via www.makemusic.com/terms-conditions
  4. Service(s) Provided. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, during the Term, MakeMusic will use commercially reasonable efforts to provide you and any of your authorized users with access to the SmartMusic services.
    1. Account Requirements. An account must be created and verified through SmartMusic in order to access the SmartMusic Services. You are responsible for usage on your account and all associated user accounts under your platform/educational institution. You may not allow more users to access paid content and/or features within SmartMusic than have been paid for during the subscription period.
    2. Computer Requirements. You will be responsible for your own Internet connection and information technology infrastructure (including computers, software, hardware, databases, electronic systems and networks) that are necessary to access and use the SmartMusic Services.
    3. Credentials. You are solely responsible for your user credentials of your SmartMusic Services account and any other authorized users on your account.
  5. Ownership Rights & Confidentiality. MakeMusic and, as applicable, its licensors, own any and all right, title and interest in and to the SmartMusic Services, including any related intellectual property rights. With the exception of user-created content or content uploaded from a third-party, created, modified or otherwise used in connection with the SmartMusic Services, MakeMusic also owns all right to, title to and interest in any output or materials created through the SmartMusic Services. MakeMusic reserves all rights that are not expressly granted herein. The SmartMusic Services are considered confidential and proprietary to MakeMusic, and are provided only to authorized licensees/users.
  6. License Grant. MakeMusic grants you a non-exclusive, revocable, limited license to access and use the SmartMusic Services solely for the purposes identified in your account registration and/or subscription purchase and/or renewal process. You may access and use content or material from the SmartMusic library solely with the intention of using the SmartMusic Services for its intended music education purposes. If you would like broader rights than those granted in your subscription, contact MakeMusic for further permissions, if applicable.
  7. Trial Access. If you access or use any version of the SmartMusic Services designated by MakeMusic as "trial", "evaluation", "not for resale", or other similar designation ("Evaluation Versions"), you may use the Evaluation Version only during the evaluation period and only for evaluation purposes. You may not use any materials, features or data provided in or through the Evaluation Version for anything other than non-commercial purposes.
  8. SMARTMUSIC GRADEBOOK™. Educator subscribers/users of the SmartMusic Services may use the GRADEBOOK Service. GRADEBOOK may be used in one of two ways. One individual educator may use the GRADEBOOK Service per purchased teacher subscription of the SmartMusic Services for multiple courses. Educators responsible for grading individual students must obtain their own subscription to the SmartMusic Services. Alternatively, a single class that is taught by multiple educators may share access to the GRADEBOOK Service provided all educators have a subscription.
  9. Subscriptions - Free, Basic, Standard and Premium Content Access: Creating a Free SmartMusic account gives you access to the limited catalog of Free SmartMusic content which can be played, performed, assigned, and graded. To access the full catalog of SmartMusic content, you must purchase teacher subscriptions and/or student subscriptions.
    1. Fees and Payments. The fees for your subscription(s) will be billed to you via your authorized credit card or via an invoice. You agree to pay or have paid all fees and charges, including any applicable taxes incurred in connection with your account for the SmartMusic Services subscriptions you select, at the rates in effect when you purchased. MakeMusic may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. You are solely responsible for any fees or charges incurred to access the SmartMusic Services through an Internet access provider, mobile service provider, or other third party service.
    2. Subscription Terms. A subscription allows the user to use the SmartMusic Services only after the user has been authenticated by MakeMusic. Term length and renewal depends on the type of subscription, user, or MakeMusic-specified attributes. For ease of comprehension, the below subscriptions have been defined as either paid for by an educational institution or paid for by an adult.

      Subscriptions paid for by an educational institution:

      1. "SmartMusic Premium Subscriptions" consist of student Premium subscription(s) which grants student access to Premium content through class assignments and full catalog access outside of class assignments. Premium subscriptions can be purchased by educators or school officials who are using the SmartMusic Services for the purpose of teaching students as part of an educational Platform. Educators may choose a term end date during the purchase process.
      2. "SmartMusic Standard Subscriptions" consist of student Standard subscription(s) which grants student access to Premium content through class assignments; MakeMusic’s Free and "Essentials" content may be explored by students outside of class assignments. Standard subscriptions must be purchased by educators or school officials who are using the SmartMusic Services for the purpose of teaching students as part of an educational Platform. Educators may choose a term end date during the purchase process.
      3. "SmartMusic Basic Subscriptions" consist of Student Basic subscription(s) which grants Student access to "Essentials" and Method Book content through class assignments and through individual exploration of the SmartMusic application. Basic subscriptions must be purchased by educators or school officials who are using the SmartMusic Services for the purpose of teaching students as part of an educational SmartMusic Platform. Educators may choose a term end date during the purchase process.
      4. "SmartMusic Free Teacher Subscriptions" consist of Free Teacher subscription(s) which allows teachers to create classes, enroll students, access the free music catalog and assign free music catalog content appropriate to their class(es). Free Teacher subscriptions can be activated by individuals who are or are not associated with an educational institution owning a SmartMusic platform. Free Teacher subscriptions do not have an end date.
      5. "SmartMusic Teacher Subscriptions" consist of Teacher subscription(s) which allows teachers to create classes, enroll students, access the entire music catalog, assign music catalog content appropriate to their class’ subscription level (see 3.a and 3.b above), access the Sight Reading Builder, access Compose, import music xml content, access the Content Manager, access Practice Analytics and create Student-Funded classes. "Teacher Subscriptions" must be purchased by educators who are using the SmartMusic Program for the purpose of teaching students.

      Subscriptions paid for by an adult:

      1. "SmartMusic Performer Subscriptions" grants the subscription holder access to the full music catalog. Performer subscriptions can be purchased by adults not associated with an educational institution owning a SmartMusic platform and who wish to have full SmartMusic content catalog access at the individual account level outside or within an educational platform. Individuals may choose a term end date during the purchase process.
      2. "SmartMusic Free Teacher Subscriptions" consist of Free Teacher subscription(s) which allows teachers to create classes, enroll students, access the free music catalog and assign free music catalog content appropriate to their class(es). Free Teacher subscriptions can be activated by individuals who are or are not associated with an educational institution owning a SmartMusic platform. Free Teacher subscriptions do not have an end date.
      3. "SmartMusic Teacher Subscriptions" consist of Teacher subscription(s) which allows teachers to create classes, enroll students, access the entire music catalog, assign music catalog content appropriate to their class’ subscription level (see 3.a and 3.b above), access the Sight Reading Builder, access Compose, import music xml content, access the Content Manager, access Practice Analysis and create Student-Funded classes. Teacher subscriptions can be purchased by adults not associated with an educational institution owning a SmartMusic platform and who wish to have the aforementioned SmartMusic access at the individual account level outside or within an educational platform. "Teacher Subscriptions" must be purchased by educators who are using the SmartMusic Program for the purpose of teaching students. Individuals may choose a term end date during the purchase process.
    3. Termination of Access. MakeMusic may discontinue or change your access at any time, and you may terminate your slot or subscription at any time. If you wish to terminate your slot or subscription, please contact MakeMusic via one of the methods listed at the bottom of this document. If you terminate your slot or subscription prior to the end of its term, you will not receive a refund for any reason. Your slot or subscription may terminate without notice if you breach the applicable use limitations for any of the access types described above or any other term of this Agreement.
      1. Suspension. Payment terms are by default, due within thirty (30) days of initial order, unless specifically negotiated prior to sale. If payment is not timely received, MakeMusic may terminate or suspend Services until payment is made.
      2. Account Name. MakeMusic may refuse to grant you an account name that impersonates someone else, is protected by trademark or other proprietary right law, or is vulgar or otherwise offensive, as determined by MakeMusic.
  10. Account Information & Access. You are responsible for maintaining the confidentiality of your username, password, and other account information and for all activities that occur under your username or account. You agree to provide accurate information and to update your account as necessary to keep it accurate. You agree that you will not allow others to access and use your account. You agree to notify us immediately of any unauthorized use of your account. We will use any personal information we collect from you in accordance with our Privacy Policy, available at http://www.makemusic.com/privacy.
  11. Content. The SmartMusic subscription library is available through the SmartMusic Services is the property of MakeMusic or its licensors and is protected by copyright and other intellectual property laws. Content licenses may change or be terminated and if this occurs, MakeMusic reserves the right to modify and/or remove content from the SmartMusic Services at any time without notice to its users. CONTENT AVAILABLE TO YOU THROUGH THE SMARTMUSIC SERVICES MAY BE USED ONLY FOR YOUR PERSONAL, NON-COMMERCIAL OR EDUCATIONAL USE. YOU MAY NOT SELL ANY CONTENT OR PROPERTY OBTAINED THROUGH SMARTMUSIC OR YOUR USE OF THE SERVICES OR IPAD APPLICATION.
  12. Noninfringement. You agree that you will not use the SmartMusic Services to infringe the copyrights or other intellectual property rights of others in any way. Without limiting the foregoing, you agree not to reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate the content received or generated through the SmartMusic Services to anyone, including (without limitation) to others in the same company or organization, without the express prior written consent of the copyright holder(s) and MakeMusic; provided, however, that subject to the Limitation of Liability and Indemnification sections below, you may distribute copies of your recorded performances along with SmartMusic accompaniments to your teachers, your family members or friends, but only for (1) noncommercial and (2) educational or evaluation purposes, and provided that you include all copyright and other proprietary rights notices with any portion of the content in the same form in which the notices appear in the SmartMusic Services, original source attribution, and the phrase "Used with permission from MakeMusic, Inc." ANY OTHER DISTRIBUTION IS PROHIBITED. UNDER NO CIRCUMSTANCES MAY RECORDED PERFORMANCES OF SMARTMUSIC ACCOMPANIMENTS WITHOUT A SOLOIST PERFORMING BE MADE FOR THE PURPOSE OF USING SMARTMUSIC WITHOUT A SUBSCRIPTION. To request consent for other matters, please contact MakeMusic via one of the methods listed at the end of this document.
  13. User-Created Content or Third-Party Content. MakeMusic is not responsible or liable in any manner for any user-created content or content received from a third party used in connection with the SmartMusic Services. You represent and warrant that any and all content you create or content you acquire from a third party for use with the SmartMusic Services does not infringe any third-party intellectual property right, including copyright. You agree to hold MakeMusic harmless from and against any loss, damage, or expense, including court costs and attorneys' fees arising out of or in connection with any user-created or third-party content you use or distribute for use in the SmartMusic Services. For more information, please visit the DMCA website at http://www.dmca.com.
  14. Copyright Owners. Important - Copyright Infringement Notice. MakeMusic, Inc. respects the intellectual property of others. MakeMusic Inc. reserves the right, in appropriate circumstances and at its discretion, to terminate the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact the licensing manager, providing the information requested below. if we find that there is infringement upon your property, we will remove the material in question immediately.
    1. an electronic or physical signature of the person authorized to act on behalf of the copyright owner;
    2. a description of the copyrighted work that you claim has been infringed;
    3. a description of where the material that you claim is infringing is located on our website;
    4. your address, telephone number, or email address so we can contact you;
    5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
    6. a statement by you, made under penalty of perjury, that the information in your notice to us is accurate and you are the copyright owner or authorized to act on the copyright owner’s behalf.

    By Email:
    licensing@makemusic.com

    By mail:
    Licensing manager
    MakeMusic, Inc.
    7007 Winchester Circle, #140
    Boulder, Colorado 80301
    USA

  15. Use & Disclosure of Data. MakeMusic and its agents may collect, maintain, process, use and disclose various types of data through the SmartMusic Services. You hereby grant MakeMusic permission, at its option and whenever you are using the SmartMusic Services, to access, review, analyze, gather, and otherwise use and disclose any information relating to your use of the SmartMusic Services (herein, "Data Collection"). The MakeMusic Privacy Policy governs our Data Collection and is incorporated into the terms of this Agreement. It is your responsibility to read the MakeMusic Privacy Policy and understand how we collect and use information about Districts, Schools, Educators, and Students. You can view our Privacy Statement here: http://www.makemusic.com/privacy.
  16. Data Policy. To view our complete Privacy policy, including our Cookies Statement and list of external processors, see the MakeMusic Privacy Policy at http://www.makemusic.com/privacy.

  17. Children's Online Privacy and Protection. We care about protecting the online privacy of children. To view our complete policy, see the MakeMusic Privacy Policy at http://www.makemusic.com/privacy. We will collect certain information about children under the legally required age, ONLY for the purpose of providing our users the opportunity to participate in educational services through the SmartMusic Services and in accordance with applicable law.

    The SmartMusic Services do not allow students who report themselves as under the legally required age in the applicable jurisdiction to create an account without consent from a parent/legal guardian or as otherwise allowed by law. It is a violation of this Agreement for children to create an account by misrepresenting their age. If a student under the age of 13 creates an account by misrepresenting her/his age and MakeMusic becomes aware of the violation, we will lock the student’s account and send a notification to the parent, legal guardian, or educator identified by the student to inform them of the unauthorized account and to provide them the opportunity to bring the account in compliance through provision of legally recognized consent. If such student’s account is not brought into compliance within a reasonable amount of time, we will delete the account and the student’s information.

    1. Users in the United States.
      1. Verifiable Consent. In the United States, the legally required age is 13. MakeMusic does not knowingly collect any information from children under 13 unless the use by such children is the result of the child participating in educational services made available to the child through a contracting school or school system and the required legal consent is provided to MakeMusic.
      2. Educational Uses. Schools that contract with MakeMusic to provide the SmartMusic Services for legitimate educational purposes will comply with the obligations in section 19 below. Schools should consider making these same notices available to parents.
    2. Users in Canada.
      1. Verifiable Consent. In Canada, the legally required age is [18]. MakeMusic does not knowingly collect any information from children under [18] unless the use by such children is the result of the child participating in educational services made available to the child through a contracting school or school system and the required legal consent is provided to MakeMusic.
      2. Educational Uses. Schools that contract with MakeMusic to provide the SmartMusic Services for legitimate educational purposes will comply with the obligations in section 19 below. Schools should consider making these same notices available to parents.
    3. Users in Europe.
      1. Verifiable Consent. In Europe, we consider the legally required age to be [16]. MakeMusic does not knowingly collect any information from children under [16] without obtaining the consent of such child’s parent or guardian.
      2. Educational Uses. Schools that contract with MakeMusic to provide the SmartMusic Services for legitimate educational purposes will comply with the obligations in section 19 below. Schools should consider making these same notices available to parents.
    4. IF YOU ARE A SCHOOL, EDUCATOR OR OTHER PERSON/ENTITY WORKING WITH AN INDIVIDUAL UNDER THE LEGALLY REQUIRED AGE THROUGH THE SMARTMUSIC SERVICES, IT IS YOUR RESPONSIBILITY TO OBTAIN AND DOCUMENT VERIFIABLE CONSENT FROM A PARENT OR LEGAL GUARDIAN BEFORE ANY CHILD UNDER THE LEGALLY MANDATED AGE MAY USE THE SMARTMUSIC SERVICES OR, AS ALLOWED BY APPLICABLE LAW, PROVIDE CONSENT ON THE PARENT’S BEHALF. YOU REPRESENT AND WARRANT THAT YOU (1) HAVE OBTAINED AND DOCUMENTED VERIFIABLE CONSENT FROM THE STUDENT’S PARENT OR LEGAL GUARDIAN OR (2) HAVE THE AUTHORITY TO PROVIDE CONSENT ON THE PARENT OR LEGAL GUARDIAN’S BEHALF UNDER APPLICABLE LAW IF YOU EITHER PROVIDE A CLASS CODE TO A STUDENT UNDER THE LEGALLY REQUIRED AGE OR CREATE AN ACCOUNT FOR A STUDENT UNDER THE LEGALLY REQUIRED AGE, WHETHER MANUALLY THROUGH THE SMARTMUSIC WEBSITE OR THROUGH IMPORTING A SPREADSHEET OF BULK STUDENT DATA OR BY ANY OTHER MEANS.
    5. Providing or Withdrawing Consent. MakeMusic allows parents and legal guardians (or schools, if applicable) to request a description of the types of information collected, to review information submitted by their children, to request the removal of any information, and to prevent further use or online collection of their children’s information. Details on these procedures can be found in our Privacy Policy at http://www.makemusic.com/privacy.
  18. Obligations of Educational Institutions Providing SmartMusic to Students or Requiring use of SmartMusic for educational purposes.
    1. It is the responsibility of the school or teacher working with a student under the legally required age to obtain and/or provide MakeMusic the legally required consent to collect and use such student’s data to allow MakeMusic to provide the SmartMusic Services. While it is the responsibility of the school or educator to obtain verifiable consent for its students who are under the legally required age, MakeMusic may send a notification to the parent or guardian identified during the enrollment process, if provided, to inform the parent/guardian of the enrollment and to provide the parent/guardian with information regarding their right to cancel the enrollment and to access and manage the enrollment information.
    2. Each school or teacher utilizing the SmartMusic Services must create and maintain a roster or accurate listing of the students who are actively participating in the SmartMusic Services in each class. You represent and warrant that you will add and remove students as applicable to maintain a current list of the participating students for your organization on a regular basis, but not less than once per term (i.e., quarter, trimester, or semester) of each class that utilizes the SmartMusic Services.
    3. Schools that Act as the Parent's Agent. In the United States, and only in certain situations, schools may act as the parent’s agent for the collection of data for educational purposes. U.S.-based Schools that contract with MakeMusic to provide the SmartMusic Services for legitimate educational purposes are providing consent to the limited collection and use of personal information of users under the legally required age as allowed under COPPA. In addition to the rights of the child’s parents and guardians, the school may also request to review and/or delete a student’s personal information. Schools should consult their compliance officers on the necessary notices, if any, to provide parents due to the Schools’ provision of this necessary consent for the student’s use of the SmartMusic Services on behalf of the parents.
    4. By using the SmartMusic Services for educational purposes, each educational institution and representative thereof represents and warrants that they will comply with any applicable laws related to the collection and use of data, whether educational or personal data, related to its students.
  19. Restrictions. Except as otherwise expressly permitted under this Agreement, Customer shall not, either directly or indirectly:
    1. copy the SmartMusic Services application or content, in whole or in part;
    2. modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the SmartMusic Services;
    3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the SmartMusic Services to any person or entity, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
    4. reverse engineer, disassemble, decompile, decode or adapt the SmartMusic Services web applications, or otherwise attempt to derive or gain access to the source code of the SmartMusic Services, in whole or in part;
    5. access or attempt to access the SmartMusic Services by any means other than the interface provided or authorized by MakeMusic;
    6. bypass or breach any security device or feature used for or contained in the SmartMusic Services;
    7. remove, alter, or obscure any warranties, disclaimers, intellectual property notices or other symbols, notices, marks or serial numbers on or relating to the SmartMusic Services;
    8. use the SmartMusic Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any person or entity, or that violates any applicable law;
    9. use the SmartMusic Services for purposes of: (i) benchmarking or competitive analysis of the SmartMusic Services; (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to MakeMusic's detriment or commercial disadvantage;
    10. use any data mining or similar data gathering and extraction methods in connection with the SmartMusic Services;
    11. use the SmartMusic Services in any manner that is not expressly permitted by this Agreement; or
    12. violate applicable law.
  20. Customer Representations. You expressly represent that: (a) you will adhere to the terms of this Agreement and any other terms provided by MakeMusic when you access the SmartMusic Services; and (b) you will maintain the confidentiality of the SmartMusic Services.
  21. Termination.
    1. This Agreement will terminate automatically without notice from MakeMusic if you fail to comply with any of the terms or limitations of this Agreement. Upon termination, MakeMusic may require that you cease all use and access to the SmartMusic Services.
    2. To have your or your child's account and associated data deleted, you must provide MakeMusic with a written request of account deletion to team@makemusic.com. By agreeing to these terms, you agree to allow MakeMusic to maintain your or your child's SmartMusic account before, during and/or after subscription terms and/or during or after an affiliation with an educational institution in accordance with our Privacy Policy.
  22. Mobile Software from the Apple App Store. THIS PARAGRAPH APPLIES ONLY IF YOU DOWNLOAD THE SMARTMUSIC SERVICES APPLICATION THROUGH THE APPLE APP STORE. MakeMusic provides this Agreement and this Agreement will apply to your use of the SmartMusic Services. You acknowledge and agree that this Agreement is solely between you and MakeMusic, not Apple, and that Apple has no responsibility for the SmartMusic Services or content thereof. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the SmartMusic Services. You and MakeMusic acknowledge that Apple is not responsible for addressing any claims by you or any third party relating to the SmartMusic Services or your possession and/or use of the SmartMusic Services, including, but not limited to: (i) product liability claims; (ii) any claim that the SmartMusic Services fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and MakeMusic acknowledge that, in the event of any third party claim that the SmartMusic Services or your possession and use of the SmartMusic Services infringes that third party’s intellectual property rights, MakeMusic, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and MakeMusic acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of the Agreement, and that, upon your acceptance of the terms 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 thereof.
  23. DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, MAKEMUSIC MAKES NO WARRANTIES REGARDING THE SMARTMUSIC SERVICES, DOCUMENTATION MATERIALS, OR MEDIA, EITHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, INCLUDING (WITHOUT LIMITATION) WARRANTIES RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND SECURITY. THE SMARTMUSIC SERVICES AND RELATED MATERIALS ARE PROVIDED SOLELY ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION MATERIALS IS WITH YOU. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE, FEATURES AND ACCOMPANYING DOCUMENTATION MATERIALS TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SMARTMUSIC SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY MAKEMUSIC, ITS DEALERS, DISTRIBUTORS, AGENTS, OR EMPLOYEES SHALL CREATE ANY OTHER WARRANTY, AND YOU MAY NOT RELY ON SUCH INFORMATION OR ADVICE.
  24. EXCLUSION OF CONSEQUENTIAL DAMAGES. NEITHER MAKEMUSIC NOR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION, LICENSING, OR DELIVERY OF THE SMARTMUSIC SERVICES AND DOCUMENTATION MATERIALS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR THE LIKE) RESULTING FROM THE ACCESS, PAYMENT, USE OR INABILITY TO USE THE SMARTMUSIC SERVICES, EVEN IF MAKEMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MAKEMUSIC SHALL NOT BE LIABLE FOR CHANGES TO ANY FINALE FAMILY NOTATION FILES THAT MAY OCCUR UPON CONVERSION TO THE SOFTWARE.
  25. CAP ON LIABILITY. YOU AGREE THAT THE LIABILITY OF MAKEMUSIC, ITS AFFILIATES, AGENTS, AND LICENSORS, IF ANY, ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) IN ANY WAY CONNECTED WITH THE SMARTMUSIC SERVICES OR THE CONTENT IN THE SMARTMUSIC SERVICES SHALL NOT EXCEED THE AMOUNT YOU PAID TO MAKEMUSIC FOR THE USE OF THE SMARTMUSIC SERVICES IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
  26. Indemnification. You agree to indemnify, defend and hold harmless MakeMusic and its subsidiaries, affiliates, officers, directors, employees, agents, successors and assigns ("Indemnitees") from and against all losses (including attorneys' fees) incurred by such Indemnitees in connection with any claim or threatened claim by a third party if such losses arise out of or relate to any allegation that would constitute a breach by you of any representation, warranty, covenant or obligation under this Agreement.
  27. Entire Agreement. This Agreement, as well as the MakeMusic Privacy Policy available at http://www.makemusic.com/privacy and any subscription terms provided to you at the time of enrollment, make up the complete and exclusive agreement between you and MakeMusic relating to the SmartMusic Services.
  28. Governing Law. This Agreement, your rights and obligations, and all actions contemplated by this Agreement shall be governed by the laws of the United States of America and the State of Colorado, as if the Agreement was a contract wholly entered into and wholly performed within the State of Colorado. Any disputes arising out of this Agreement shall be venued in the state or federal courts sitting in the State of Colorado.
  29. Assignment. This Agreement is personal to you. You may not assign your rights or obligations to anyone.
  30. Severability. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect.
  31. Electronic Marketing. By clicking to agree to the SmartMusic ® Terms of Service, you expressly agree and consent to receiving all notices from MakeMusic relating to your personal information, your account or any license or relationship that you have with MakeMusic via electronic mail via the address you have provided to MakeMusic as your email address. You have the right to revoke consent to receive such notices via electronic mail, but until such consent is revoked, your consent to receive notices via electronic mail will remain in full force and effect.
  32. Restriction on Users. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  33. Contact Us / Notices. If you have questions or comments about this Agreement, please contact MakeMusic directly:
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    • Visit us on-line at http://www.makemusic.com/contact-us/
    • Call us Toll Free (for the U.S.A.): 1-800-843-2066
    • Send us a letter addressed by First Class Postage Prepaid U.S. Mail or overnight courier to the following address:
      • Customer Success
        MakeMusic, Inc.
        7007 Winchester Circle, Suite 140
        Boulder, CO 80301
        USA
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