TERMS OF USE OF DALMAESTRO.COM
Carefully read the Terms and Conditions of this Agreement before you check the box indicating that you have read and agree to our Terms and Conditions. By checking the box, clicking on the ‘I accept’ button in the registration form or using the website in any manner, you are agreeing to be bound by and are becoming a party to this agreement. We reserve the right to change the terms of this agreement in the future and any changes will apply to your use of the website after the date of such change.
In the event that you are using DALMAESTRO.COM on behalf of a minor (to sign up the minor for lessons, or otherwise), your agreement to these terms will bind you and the minor on whose behalf you are using this website.
1. ACCEPTANCE OF TERMS; LEGAL COMPLIANCE
DALMAESTRO LLC, a New York limited liability company (hereinafter referred to as “DalMaestro”, “we”, “our” or “us”), provides this website, www.DalMaestro.com (the “Site”), including all information, lessons, classes, documents, communications, files, images, text, graphics, software, software applications, and products available through the Site (collectively, the “Materials”) and all services operated by DalMaestro and third parties (including independent contractor teachers, mentors and instructors) through the site (collectively, the “Services”), available for your use subject to the terms and conditions set forth in this document and any changes to this document that we may publish from time to time (collectively, the “Terms of Use” or “Agreement”). You understand that we serve merely as a platform, connecting teachers and students.
We reserve the right to change the Terms of Use and other guidelines or rules posted on the Site from time to time at our sole discretion. Your continued use of the Site, or any Materials or Services accessible through it, after such notice has been posted constitutes your acceptance of the changes. Your use of the Site will be subject to the most current version of the Terms of Use, rules and guidelines posted on the Site at the time of such use. You should periodically check these Terms of Use to view the then current terms. If you breach any of the Terms of Use, your authorization to use this Site automatically terminates.
We further reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Materials and/or Services (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of our Materials and/or Services (or any part thereof). To the extent that you have pre-paid for services which will not be provided to you due to our termination of services, we agree to refund you the unused portion of your payments to use.
You (including any users, students, teachers, instructors and mentors) agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and your provision of classes and instruction (remotely and in-person).
Our payment, cancellation and related terms are provided on the following page http://www.dalmaestro.com/paymentscancellations/ , which is incorporated by reference into this Agreement. By entering into this Agreement or using the Site, you are agreeing to be bound not only by all the terms and conditions in this document, but you are also agreeing to be bound by all of the terms provided in the link provided above (covering, among other items, payment and cancellation).
2. DEFINED TERMS
This Site primarily serves as a platform through which musical and educational classes and instruction may be provided to students. These services may be provided by us directly or through a third party provider such as Zoom.us. DalMaestro.com accommodates users who merely wish to browse our Site, students obtaining instruction/lessons through the Site, and teachers/instructors providing lessons/instruction through the Site. Unless context requires otherwise, the term “you” refers to you, whether you are a browser, student or instructor. We will use the term “student” to refer to an individual who registers to obtain instruction or lessons through the Site; and the term “instructor” will refer to individuals providing instruction or lessons through the Site (or in-person when so indicated by the text).
All user-supplied content, information, materials, files, communications, documents, text and images, including any user/student reviews you provide through the Site or any of our applications, are referred to collectively as “User Content.” User Content includes content that is submitted on public portions of our website. For example, comments you leave on our blog constitute User Content. “Our Content” or “DalMaestro Content” means all materials provided by us. The terms and conditions expressed in this agreement apply to all users and visitors of this Site.
3. USER ACCOUNTS
All students and instructors will be required to register and create a user account (an “Account”). By using the Site and/or setting up an Account you represent that you are of legal age to form a binding contract and are not a person barred from receiving our Services under the laws of the United States or otherwise. If you are registering on behalf of a minor student, you represent that you have the legal authority to bind the minor to the terms of this Agreement, and you further agree that both you and the student minor will be parties to, and bound by, this Agreement. You also agree:
i. that you will not use an Account that is created by another Site user;
ii. that you will supply only complete and accurate information in registering for an Account;
iii. that you are solely responsible for the activity that occurs on your Account, that you will keep your Account password secure at all times, and that we will not be liable for your losses caused by any unauthorized use of your Account; and
iv. that if your Account has been compromised for any reason, you will immediately notify us of the security breach or unauthorized use of your Account.
We reserve the right to (a) terminate a user’s Account and take appropriate legal action against anyone who, in our sole discretion, violates these Terms of Use; (b) in our sole discretion without notice and without limitation or liability, refuse, restrict access to or availability of, or terminate any user’s Account for any reason.
4. INTELLECTUAL PROPERTY; LIMITED LICENSE
The Materials and Services on this Site, as well as their selection and arrangement, are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Materials or Services at this Site may violate such laws and these Terms of Use. Except as expressly provided herein, we do not grant any express or implied rights to use the Materials and Services. You agree not to copy, republish, frame, download, transmit, modify, assign, distribute, or create derivative works based on the Site, its Materials, or its Services or their selection and arrangement, except as expressly authorized herein. In addition, you agree not to use any data mining, robots, or similar data gathering and extraction methods in connection with the Site.
The rights specified above to view and use Our Content and User Content available on this Site are not applicable to the design or layout of this Site. Elements of this Site are protected by trade dress and other laws and may not be copied or imitated in whole or in part.
5. TRADEMARK INFORMATION
The trademarks, logos, and service marks, including the “DalMaestro” trademark (collectively, the “Marks”), displayed on this Site are the property of DalMaestro or other third parties. You are not permitted to use the Marks without the prior written consent of DalMaestro or such third party that may own the Mark.
6. LICENSE TO DALMAESTRO FOR USER CONTENT
Certain pages on the Site, such as the blog pages, may accommodate or require User Content. By submitting User Content to any area of the Site you grant us the following type of license: a perpetual, worldwide, royalty-free, non-exclusive license to modify and reproduce such User Content. You also grant us a worldwide, perpetual, royalty-free, non-exclusive license to modify, compile, reproduce, sell, license and distribute such User Content without notice or compensation to you.
You agree that you will not submit any User Content to the Site that is in any manner infringing, untrue, or defamatory. Before submitting content or links from other websites you agree to review such sites’ terms and conditions to ensure that your activity on our Site does not violate such terms, and you agree to indemnify us to the extent that we are harmed because of your wrongdoing.
7. DIGITAL MILLENNIUM COPYRIGHT ACT
Our Site is committed to complying with U.S. copyright laws. The Digital Millennium Copyright Act (“DMCA”) provides a recourse for owners of copyrighted material who believe that their rights under U.S. copyright laws have been infringed on the Internet. Under the DMCA, copyright owners may contact the authorized agent of an Internet service provider to report alleged infringements of their protected works appearing on web pages hosted by the service provider. Upon receipt of a properly filed complaint satisfying the requirements of the DMCA, DalMaestro will remove or block access to the allegedly infringing material, and may terminate the user’s Account as provided in this Agreement. It is our policy, in appropriate cases, to terminate user accounts which are repeated offenders of others’ copyrights. If a person believes in good faith that a notice of copyright infringement has been wrongly filed, such person may submit a counter-notice to us. In any event, we shall not be made a party to disputes over alleged copyright infringement.
If you are a copyright owner or an agent thereof and believe that any User Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; Identification of the 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 the service provider to locate the material; Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail; A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and 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 may send the notification to info@dalmaestro.com.
8. PROHIBITED COMMUNICATIONS
You may submit only User Content to or through the Site that is (a) owned by you, (b) submitted with the express permission of the owner or within the scope of the license to such content, or (c) in the public domain. As outlined in more detail below, you are prohibited from posting or transmitting to or from this Site (including during any class/lesson) any unlawful, threatening, harassing, libelous, offensive, (including any offensive language or suggestive content, as determined by us), defamatory, obscene, or pornographic materials, including any nude photographs or images, or other materials that would violate any law or the rights of others, including, without limitation, laws against copyright infringement, and rights of privacy and publicity. Violation of these restrictions may result in denial of or limitations on access by you to this Site. Furthermore, if legal action is taken against us for your violations of these terms we reserve the right to hold you liable for our losses resulting from your violation of these provisions or of applicable law, and you agree to fully indemnify us and to compensate us for any resulting losses and related legal costs (including reasonable legal fees) incurred in defending ourselves because of your violation of these Terms of Use and other rules and conditions posted on the Site.
More specifically, you understand that you are entirely responsible for the content of, and any harm resulting from, your postings to or transmissions through the Site of User Content and from your provision of instruction/classes or your attendance of instruction/classes (this is particularly true because we are not a party to the relationship between the instructor and student). When you create or make available your User Content, or when you participate in classes or instruction (whether as a teacher or student), you thereby represent and warrant that:
(a) the creation, distribution, transmission, public display and performance, accessing, downloading and copying of your User Content and participation does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights of any third party;
(b) you have fully complied with any third-party licenses relating to your User Content and the content of your class/instruction participation;
(c) your User Content does not contain any viruses, malicious code or other harmful or destructive content;
(d) your User Content and the content of your class/instruction participation is not obscene, lewd, lascivious, filthy, harassing or otherwise objectionable, libelous or slanderous, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
(e) your User Content and the content of your class/instruction participation does not contain material that solicits personal information from anyone under 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any applicable child pornography law or otherwise intended to protect the health or wellbeing of minors;
(f) your User Content and the content of your class/instruction participation does not violate any applicable law designed to regulate electronic advertising;
(g) your User Content does not constitute, contain, install or attempt to install or promote spyware, malware or other computer code designed to enable you or others to gather information about or monitor the online or other activities of another party on or through the Site;
(h) your User Content and the content of your class/instruction participation does not contain any defamatory material;
(i) your User Content does not inundate the website with communications or other traffic suggesting no serious intent to use the website for its stated purpose; and
(j) your User Content does not otherwise violate, or link to material that violates, any provision of these Terms of Use or any applicable law or regulation.
9. PROHIBITED USE OF THE DALMAESTRO WEBSITE, SERVICES AND MATERIALS
You may not access or use the Site for any other purpose other than that for which we make it available. In using the Site, including all Services and Materials available through it, you agree to not engage in any prohibited activities. Prohibited activity includes, but is not limited to:
(a) criminal or tortious activity, including fraud, trafficking in counterfeit material, harassment, stalking, spamming, or copyright or trademark infringement;
(b) transmitting junk messages to other users, other than transmissions expressly permitted on the Site;
(c) using any information obtained from the Site in order to contact, advertise to, solicit, or sell to users;
(d) disrupting or interfering with the security of, or otherwise causing harm to, the Site, or any Services, Materials, system resources, accounts, passwords, servers, or networks connected to or accessible through the Site; and
(e) using the Site in a manner inconsistent with any and all applicable laws and regulations.
10. MANAGING CONTENT AND COMMUNICATIONS
We reserve the right but do not have the obligation to: (a) monitor the Site (including any live and virtual classes and instructional sessions) for violations of these Terms of Use; (b) take appropriate legal action against anyone who, in our sole discretion, violates these Terms of Use; (c) in our sole discretion and without limitation, refuse, restrict access to or availability of, or delete any user’s User Content or any portion thereof that may violate these Terms of Use or any policy of ours; (d) in our sole discretion and without limitation, notice or liability remove from the Site or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; (e) terminate and delete Accounts (including information stored in connection with Accounts) without liability to you; and (f) to otherwise manage the Site in a manner designed to protect the rights and property of DalMaestro and others and to facilitate the proper functioning of the Site. We make no representation that we will keep or save your User Content or that we will necessarily record your class/instruction; and all such content may be deleted by us in our sole discretion without liability. In addition, to the maximum extent permitted by law, we will have no liability related to User Content or the content of your class/instruction participation; we disclaim all liability with respect to the misuse, loss, modification, or unavailaibity of such content.
11. WARRANTIES AND DISCLAIMERS
Except as expressly provided otherwise in a written agreement between you and us, this Site, and all Materials and Services accessible through this site are provided “as is” without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability or fitness for a particular purpose, or the warranty of non-infringement. Without limiting the foregoing, we make no warranty that (I) the Services and Materials will meet your requirements; (II) the Services and Materials will be uninterrupted, timely, secure, or error-free; (III) the results that may be obtained from the use of the Services or Materials will be effective, accurate, or reliable; (IV) the quality of any Services or Materials obtained or accessible by you through the Site will meet your expectations; and (V) any errors in the Services or Materials obtained through the Site, or any defects in the Site, its Services or Materials, will be corrected.
The use of the Services or the downloading or other use of any Materials through the Site is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system, loss of data, or other harm that results from such activities. We assume no liability for any computer virus or other similar software code that is downloaded to your computer from the Site or in connection with any Services or Materials offered through the Site. No information, whether oral or written, obtained by you from us or through or from the Site shall create any warranty not expressly stated in these Terms of Use.
We do not screen students who attend our classes (live or online). We make no representations whatsoever about the credibility or character of any student. Any dealings or interactions you may have with other students are at your own risk. If you harm any student or teacher, you agree to be fully liable for such harm and any resulting loss suffered by such student or teacher because of you. In addition, and without limitation, you agree to fully indemnify us and to hold us harmless with respect to any action (including legal action) taken against us (or threatened to be taken against us) resulting from your actions or inactions, including reasonable attorney fees, costs and settlements. You understand that DALMAESTRO is primarily a platform which facilitates the interaction between students and teachers.
12. PERSONAL INFORMATION AND PRIVACY
You understand and agree that we may disclose information about you if we have a good faith belief that we are required to do so by law or legal process, to respond to claims, or to protect the rights, property, or safety of DalMaestro or others. Please refer to our privacy policy for more information about the manner in which we protect and use your information.
13. LIMITATION OF LIABILITY
To the maximum extent permitted by law, in no event shall DALMAESTRO or its officers, owners, or employees be liable to you or any third party under any contract, tort, strict liability, negligence or under legal or equitable theory for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profit damages arising from your use of the Site and any of the Materials or Services, even if we have been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein, our liability for any cause whatsoever and regardless of the form of the action, will at all times be limited to amount actually paid, if any, by you to us during the 12-month period prior to the time the claim arose.
14. INDEMNITY AND LIABILITY
You agree to indemnify and hold DALMAESTRO, and its subsidiaries, affiliates, officers, owners, directors, agents, partners and employees, harmless from any claim or demand, including reasonable attorney’s fees, made by any third party (including teachers or students) due to or arising out of your content, your conduct, your use of the site, your provision or obtaining of Services, torts or damaged caused by you, your connection to the site or our services, your violation of these terms of use or your violation of any rights of another person or entity.
15. GOVERNING LAW, JURISDICTION AND ARBITRATION
This Agreement is governed in all respects by the laws of the State of New York without regard to conflict of laws provisions. Subject to the arbitration provisions in this section, you accept and consent to the personal jurisdiction and venue of the federal and state courts in Kings County, New York. Notwithstanding the foregoing, in the event a dispute arises between you and DalMaestro arising from or relating to the subject matter of this Agreement or any of the Materials or Services, such dispute shall be finally settled by arbitration in Kings County, New York, using the English language in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and contract disputes, who shall be selected from the appropriate list of AAA arbitrators in accordance with the Arbitration Rules. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and expert witness fees) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court in Kings County, New York for injunctive or other equitable relief pending a final decision by the arbitrator. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and DalMaestro agree that any cause of action arising out of or related to the Site (including, but not limited to, (i) any services provided or made available by DalMaestro, and (ii) any disputes between a teacher and DalMaestro) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred. Any controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party.
16. GENERAL
The Terms of Use and the other rules, guidelines, licenses and disclaimers posted on the Site constitute the entire agreement between DalMaestro and you with respect to your use of the Site. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties as reflected by that provision, and the remainder of the Terms of Use shall continue in full force and effect. Any failure by us to enforce or exercise any provision of these Terms of Use or related right shall not constitute a waiver of that right or provision.