Last Updated: 02/15/2018
IMPORTANT - READ CAREFULLY: These Terms of Service (“Terms”) apply to your access and use of the website(s) (“Site”) [and mobile application(s) (“App”)] of Musifai, Inc., (the “Company” or “Musifai”), and the products and services available on such websites and mobile applications (collectively, the “Services”).
BY CLICKING “REGISTER” OR “PURCHASE” WHEN YOU REGISTER FOR OR PURCHASE ANY SERVICES OR PRODUCTS, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE 13 YEARS OR OLDER AND THAT YOU ARE AUTHORIZED TO USE YOUR CHOSEN PAYMENT METHOD FOR THE PURPOSE OF RENTING OR PURCHASING PRODUCTS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “REGISTER” AND “PURCHASE” OR ACCESS OR USE ANY OF THE SERVICES.
1. GENERAL DESCRIPTION. The Services provide you with access to musical instruments (“Products”) to purchase or rent. In addition, the Company offers related features and applications as part of its Services.
In connection with using the Site and the Services, you understand and agree that:
To the extent that you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
Children under the age of 13 may not use the Services, and parents or legal guardians may not agree to these Terms on their behalf.
Musifai reserves the right, in its sole and absolute discretion and with or without notice to you, to change, limit, withdraw, modify, or end the Services, including without limitation any content, functionality, features, or services offered in connection with the Services or how you connect and interact with the Services.
2. REGISTRATION. To use certain Services, you may submit a complete Musifai registration. As part of the registration process for these Services, you agree to: (i) provide certain personal information about you as prompted to do so by the Services; and (ii) enter, update, and maintain this information as required to keep it accurate, current, and complete. The information requested on original signup shall be referred to as registration data ("Registration Data"). If Musifai discovers that any of your Registration Data is inaccurate, not current, or incomplete, Musifai may terminate your right to access and use the Services immediately upon notice to you. Musifai will evaluate the registration application and notify you within a reasonable time of its acceptance or rejection. Musifai may reject a registration application if it determines, in Musifai’s sole and absolute discretion, that the applicant is not an appropriate subscriber or user of the Services. Musifai reserves the right to refuse the Service to any user for any reason, and Musifai need not provide a reason for its rejection. You must be 13 years of age or older to register for the Service. By registering for this Service, you represent to Musifai that you are 13 years of age or older. Upon your acceptance of these Terms and completion of the registration process, you will have opened an account with Musifai and will have become a subscriber to the Musifai Service.
3. AUTHORIZATION TO CONTACT YOU. You agree to be contacted by Musifai at the mobile telephone number that you provide, if needed in order to confirm your order and schedule the delivery of your musical instrument. Standard telephone minute charges or SMS charges from your mobile telephone carrier may apply.
By using the Services, you agree to receive email and SMS (text) message notifications containing Personal Information on your mobile device via an unsecure channel. This is your personal choice, and we encourage you to protect the information carefully. If you do not wish to receive email and SMS messages in this manner, you should not use the Services.
4. RENTAL TERMS. The following Terms apply to the rental of any Product:
a. The rental fee (“Rental Fee”) for the Product will be the total of the rental charges, insurance charges, delivery charges, and other fees listed on the Site or App for your rental of the Product. When you place your rental order for a Product, you hereby authorize Musifai to charge your payment card for the Rental Fee. Musifai will charge your payment card the amount of the Rental Fee immediately upon your rental order. A reservation of a Product on the Site or App is an order for the rental of that Product, regardless of how far in advance that Product is reserved. Rental Fees exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Musifai, shall be paid by you to Musifai in connection with your rental order.
b. You may cancel your rental order subject to the following cancellation fees and policies:
If you cancel in advance of the delivery, there is no cancellation fee and you will receive a full refund issued to the payment card you used for the order.
If you cancel after the delivery, you will need to follow the Return Policy on the website to get a refund. Shipping charges and other fees may apply.
c. With delivery of the Product, Musifai will provide you with Musifai carrying case or mailing envelope (as the case may be) as well as instructions for your use in returning the Products to Musifai (“Return Policy”). All parts of the musical instrument must be returned to Musifai. The Musifai carrying case is not yours to keep. If the Musifai carrying case is not returned you will be charged a fee for the case.
d. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a Secure Shipping Address is highly recommended. In the event that an un-secure shipping address is provided, Musifai does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Musifai will not be liable. You will be liable for all such delays and additional delivery fees.
e. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, or any other cause, other than normal wear and tear. Normal wear and tear encompasses minor damage covered by the insurance you paid for with your rental of the applicable Product. If you return a Product that is damaged beyond normal wear and tear, then you agree that we shall charge you, and you shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the Retail Value for the Product.
f. You agree to return the Products to Musifai in the Return Packaging on or before the return date for the Products that are identified in the online invoice for your order. You must return the Product by delivering the Product in the Return Packaging to a UPS store by 12 p.m. on or before the date that the Product is due. We are not responsible for any personal or other items left in the Products or which are returned to Musifai in the Return Packaging. If you believe you have accidentally or otherwise sent us any such items, please contact customer service as soon as possible at email@example.com. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
g. If you return your item late, a late fee of the monthly rental fee of your instrument will be charged to your card. If you do not return the instrument within 15 days of the return date, we will consider it a non-return, and you will be charged the full retail price of your rental item. The late fee is payable for each order of Products that is not returned when due, not for each Product that is the subject of the order that is late.
h. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the expected return date, and providing Musifai with a tracking number. Also, if you lose or fail to return the Musifai carrying case you will be charged a fee for the case. If you still possess the Musifai carrying case, it is yours to keep, though on an “AS IS” basis without warranty of any kind.
i. The following are the limited warranties Musifai provides in connection with Product rentals. Musifai’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee (excluding insurance and delivery charges) as determined by Musifai.
- Subject to availability, we will deliver the Products you ordered within 3 business days of your order, except in the rare event that there is an occurrence subsequent to the placing of the order that prevents timely delivery. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available equivalent rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. Products may appear different from those displayed on the Site or App.
- The Products will be cleaned and delivered ready to use. Musifai inspects each Product with the utmost care, but use of the Product is at your own risk and Musifai shall not be held liable for any health-related complaints associated with any Product.
j. Rental Fees are subject to change without notice.
5. PURCHASE TERMS. The following additional Terms apply to the sale of any Product.
You acknowledge and agree that only those Products designated by us on the Site or App as available for purchase are eligible for purchase by you. Musifai will professionally clean and inspect the Products before they are delivered to you. However, all Products are sold on an “as is” basis, without any warranty whatsoever, and all sale products cannot be returned.
The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site or App in connection with your purchase of the Products. Purchase Price is as listed on the Musifai website at the time of purchase, and is subject to change. Musifai reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order, you hereby authorize Musifai to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Musifai, shall be paid by you to Musifai in connection with your purchase order. Purchase orders are final and cannot be cancelled.
6. FEEDBACK. Musifai may ask users to provide certain information in exchange for the use of the Services and users may provide unsolicited feedback to us (collectively, “Feedback”). You agree you will not: (i) submit any Feedback not based on direct experience with the Services; (ii) attempt to manipulate the Feedback by posting Feedback more than once with respect to a particular experience or set of related experiences (except if Musifai requests such information in more than one category); or (iii) post Feedback from an account other than the account Musifai assigned to you. In addition, you hereby grant Musifai a royalty-free, unrestricted, worldwide, perpetual, irrevocable non-exclusive license to use, copy, reproduce, modify, adapt, publicly sell and license, and create derivative works from, the Feedback for any commercial, non-commercial, promotional or other purpose.
7. FEES AND TAXES. There may be fees associated with the use of certain Services. You are also responsible for any out-of-pocket costs of any musical instruments that you rent or purchase. Musifai reserves the right to institute new charges for access to or use of the Services at any time upon not less than thirty (30) days' notice to the you, sent to the email address you provide to Musifai as part of the Registration Data. It is your responsibility to regularly review pricing information for changes posted in these Terms. Your continued use of the Services or non-termination of the Services after the effective date of price changes constitutes your acceptance of the modified prices or other changes. You agree to pay all state and local sales, use, gross receipts and similar taxes (“Taxes”) applicable to the Service and to the purchase or rental of Products, unless you provided us with acceptable documentation showing you are exempt. If you fail to pay such Taxes, you agree to reimburse Musifai for any Taxes paid on your behalf, and to indemnify, defend, and hold Musifai harmless against any claim, liability, or penalties resulting therefrom.
8. DISPUTE RESOLUTION. All bills are presumed accurate, and shall be binding on you unless an objection is received by the Company in writing within thirty (30) days after such bills are rendered. No credits, refunds, or adjustments shall be granted if demand therefore is not received by the Company in writing within such thirty (30) day period. If you have an inquiry or complaint regarding Service or accounting, you may e-mail Musifai at firstname.lastname@example.org. Adjustments to your bills shall be made to the extent that records are available or circumstances exist which reasonably indicate that such charges are not in accordance with approved rates, or that an adjustment may otherwise be appropriate. Where overbilling occurs, due either to the Company or to your error, no liability exists which will require the Company to pay any interest, dividend or other compensation on the amount overbilled.
9. NO RESALE OR COMMERCIAL USE OF THE SERVICES. Your right to use the Services is personal to you. You agree not to resell the Services, or other materials or any information obtained by you from Musifai, without the express written consent of Musifai.
10. USER CONDUCT. You are solely responsible for the content of your transmissions through the Services. Your use of the Services is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). You agree: (i) to comply with all United States laws, rules, and other regulations applicable in connection with the Services; (ii) not to use the Services for illegal purposes; (iii) not to interfere or disrupt networks connected to the Services including by introducing viruses or other technologically harmful materials; (iv) not to use the Services to infringe any third party's copyright, patent, trademark, trade secret, or other intellectual property rights or rights of publicity or privacy; and not to transmit, through the Services, Feedback or otherwise, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material of any kind or nature. In addition, you will not attempt to gain unauthorized access to other computer systems or attempt to override any security feature of the Services, and you will not interfere with another user's use and enjoyment of the Services or otherwise interfere with the proper functioning of the Services.
11. PROPRIETARY RIGHTS. You acknowledge and agree that the Services (including, without limitation, all content, information, data, items, materials, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by Musifai, its licensors, or other providers of such material and are protected by United States and international intellectual property or proprietary rights laws. MUSIFAI™, and other names, logos, icons, and marks identifying Musifai’s products and services, are trademarks of Musifai and may not be used without the prior written consent of Musifai. You may not copy, reproduce, distribute, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, the account access granted to you (in whole or in part) or create derivative works of this Service without Musifai’s prior written consent. In addition, you may not reverse engineer, decompile, alter, modify, disassemble, or otherwise attempt to derive source code from the Services. All rights not expressly granted in these Terms are reserved to Musifai.
12. LINKS TO THIRD PARTY SITES. The Services may contain links to other independent third-party websites. Musifai provides these links for your reference only. Musifai does not control these websites and Musifai is not responsible for, and does not endorse, their content, resources, or services.
14. MODIFICATIONS. Musifai may amend these Terms at any time by: (i) posting revised Terms on the Service; and (ii) sending information regarding such amendment to the email address you provide to us as part of the Registration Data. Unless otherwise stated in the amendment, all changes are effective immediately when posted, and will apply to all access and use of Services thereafter. You are responsible for regularly reviewing the Service to obtain timely notice of such amendments. Your continued of the Services after the amended Terms have become effective constitutes your acceptance of those Terms. Otherwise, these Terms may not be amended except in writing signed by both parties.
15. PASSWORD AND SECURITY. As part of the registration process, you will select a username and password. You must carefully safeguard your username and password. You are solely and exclusively responsible if you do not maintain the confidentiality of account information. In addition, you are solely and exclusively responsible for any and all activities that occur under your account. You must immediately notify Musifai of any unauthorized use of your account or any other breach of security known to you, including if you believe that your account information has been stolen or otherwise compromised.
16. TERMINATION. Musifai may immediately terminate your Account and right to use the Services if: (i) you breach these Terms; (ii) we are unable to verify or authenticate any information you provide to us; (iii) you provide false, misleading, or otherwise inaccurate information to us; or (iv) we decide, in our sole and absolute discretion, to discontinue offering the Services. Should you object to any of the Terms, or any subsequent modifications thereto, or should you become dissatisfied with the Services in any way, your sole recourse is to immediately: (1) discontinue use of the Services; (2) terminate your membership; and (3) notify us of termination. Upon termination of membership, your right to use the Services immediately ceases; however, certain payment obligations may still apply.
17. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES ARE AT YOUR SOLE RISK. AND THAT THE PRODUCTS AND SERVICES ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. MUSIFAI EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MUSIFAI MAKES NO REPRESENTATION OR WARRANTY THAT: (I) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, RELIABLE, ACCURATE, OR ERROR-FREE; (II) DEFECTS WILL BE CORRECTED; (III) ANY PARTICULAR RESULTS MAY BE OBTAINED FROM YOUR USE OF THE SERVICES; (IV) THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL COMPONENTS; OR (V) THE SERVICES WILL OTHERWISE MEET YOUR NEEDS, REQUIREMENTS, OR EXPECTATIONS. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SERVICES IS DONE AT YOUR OWN RISK, AND THAT YOU WILL BE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OR IS CAUSED BY VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, MOBILE DEVICE, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE, ACCESS, OR DOWNLOADING OF THE SERVICES. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MUSIFAI OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
18. LIMITATION OF DAMAGES AND LIABILITY. IN NO EVENT SHALL MUSIFAI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, DATA, GOODWILL, OR REVENUE, EVEN IF MUSIFAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MUSIFAI’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY FOR ALL DAMAGES, CAUSES OF ACTION, LOSSES, AND COSTS IN THE AGGREGATE IS LIMITED TO $100 OR THE OUT-OF-POCKET COST OF PRODUCTS YOU HAVE ORDERED THROUGH THE SERVICES DURING THE THREE (3) MONTHS PRIOR TO THE DATE WHEN SUCH DAMAGES OCCURRED OR CAUSE OF ACTION ACCRUED, WHICHEVER IS GREATER.
19. INDEMNITY. You hereby agree, at your sole cost and expense, to indemnify, defend, and hold Musifai harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to: (i) a third-party claim, action, or allegation of infringement based on information, data, files, or other content submitted or transmitted through the Services by you; (ii) any fraud or manipulation, or other breach of these Terms by you; or (iii) any third-party claim, action, or allegation brought against Musifai arising out of or relating to your use of the Products or Services.
20. RELEASE. If you have a dispute with any third party, you release Musifai, its affiliates and subsidiaries, and their respective officers, directors, managers, employees and agents, from and against claims, demands, and damages (actual and consequential) arising out of or in any way connected with such dispute. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. If you are a California resident, you also waive your rights with respect to California Civil Code Section 1542, which says that “a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing this release, which, if known by him must have materially affected his settlement with the debtor.”
21. GENERAL TERMS. These Terms are governed in all respects by the laws of the State of New York, without giving effect to its choice or conflict of law principles. Both parties submit to personal jurisdiction in New York and further agree that any cause of action relating to these Terms shall be brought in a federal or state court in New York County, New York. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain valid and enforceable. Musifai’s failure to act with respect to your breach of these Terms does not waive Musifai’s right to act with respect to subsequent or similar breaches. You may not assign or transfer these Terms or any rights hereunder, and any attempt to the contrary is void. These Terms shall inure to the benefit of and be binding upon each Party's successors and assigns. Musifai shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond Musifai’s reasonable control. Unless otherwise provided in this Agreement, Musifai will send any notice(s) to you that may be required or permitted under this Agreement to the email or mailing address you provide as part of the Registration Data. Any notice to Musifai must be sent via email email@example.com.
You understand and agree that you are solely and exclusively responsible for periodically reviewing these Terms.