1 - Complete Music Trainer Service
1.1 - The Complete Music Trainer Service ("Complete Music Trainer") is a SAAS provided by Binary Guilt Software that helps musicians work on their ear, rhythm and music reading skills.
1.2 - Using Complete Music Trainer is not a guarantee of compliance with any legal obligations you may have. You remain responsible for meeting any such legal obligations.
2 - Application of terms
2.1 - These Terms apply to your use of the Service (as that term is defined below). By setting up a User Account, Organization or accessing and using the Service:
a - you agree to these Terms; and
b - where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorized to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
2.2 - If you do not agree to these Terms, you are not authorized to access and use the Service, and you must immediately stop doing so.
3 - Changes
3.1 - We may change these Terms at any time. We will notify you of the change by email and, where practical, will provide you 15-day advance notice of the change. Unless stated otherwise, any change takes effect from the date set out in the notice. By continuing to access and use the Service from the date on which the Terms are changed, you agree to be bound by the changed Terms.
3.2 - These Terms were last updated on July 17, 2022.
4 - Interpretation
In these Terms:
Complete Music Trainer Software means the software owned by us (and our licensors) that is used to provide the Service.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Service. Our Confidential Information includes Intellectual Property owned by us (or our licensors), including the Complete Music Trainer Software. Your Confidential Information includes the Data.
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored using, or inputted into, the Service.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
- an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
- a lack of funds for any reason.
including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
Permitted Users means your personnel who are authorized to access and use the Service on your behalf.
Collaborators means users that will use the Service but that are not affiliated with you.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors, volunteers, agents and any person you invite or allow to be connected with your use of the Service, but a reference to your personnel does not include us.
Plan means the functionality, capabilities, configuration and any limitations that you are subscribing to.
Service means the service having the core functionality described on the Website, as the Website is updated from time to time.
Underlying Systems means the Complete Music Trainer Software, IT solutions, systems and networks (including software and hardware) used to provide the Service, including any third-party solutions, systems and networks.
User Profile means the personal information loaded by individual users when they register on the system and as updated by them from time to time. This includes their name, photo, email address, and any other information that they load into the profile section of the Service.
We, us or our means Binary Guilt SCOMM (trading as Binary Guilt Software), company number 0727.508.017.
Website means both the internet site at app.completemusictrainer.com and the desktop apps that can be downloaded from completemusictrainer.com, or such other site notified to you by us.
You or your means you or, if clause 2.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
5 - Provision of the Service
5.1 - We must use reasonable efforts to provide the Service:
a - in accordance with these Terms and Belgium law;
b - exercising reasonable care, skill and diligence; and
c - using suitably skilled, experienced and qualified personnel.
5.2 - Our provision of the Service to you is non-exclusive. Nothing in these Terms prevents us from providing the Service to any other person.
5.3 - Subject to clause 5.4, we must use reasonable efforts to ensure the Service is available on a 24/7 basis and to minimize downtime. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.
5.4 - Through the use of web services and APIs, the Service interoperates with a range of third-party service features. We do not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third-party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third-party feature, you are not entitled to any refund, discount or other compensation.
6 - Your Obligations
6.1 - You and your personnel must:
a - use the Service in accordance with these Terms solely for:
i - your own internal business purposes to organize and deliver Events.
ii - lawful purposes (including complying with the Unsolicited Electronic Messages Act 2007; and
b - not resell or make available the Service to any third party, or otherwise commercially exploit the Service without first obtaining our express written agreement.
6.2 - When accessing the Service, you and your personnel must:
a - not impersonate another person or misrepresent authorization to act on behalf of others or us;
b - not attempt to undermine the security or integrity of the Underlying Systems;
c - not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service;
d - not attempt to view, access or copy any material or data other than:
i - that which you are authorized to access; and
ii - to the extent necessary for you to use the Service in accordance with these Terms; and
e - neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third-party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading.
6.3 - A breach of any of these Terms by your personnel is deemed to be a breach of these Terms by you.
6.4 - You are responsible for procuring all licenses, authorizations and consents required for you and your personnel to use the Service, including to use, store and input Data into, process and distribute Data through, the Service.
7 - Data
7.2 - You acknowledge that:
a - we may require access to the Data to exercise our rights and perform our obligations under these Terms; and
b - to the extent that this is necessary but subject to clause 10, we may authorize a member or members of our personnel to access the Data for this purpose.
7.3 - You acknowledge and agree that:
a - we may:
i - use Data and information about you and your end users’ use of the Services to generate anonymized and aggregated statistical and analytical data (Analytical Data); and
ii - use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights.
b - our rights under clause 7.3a above will survive termination of expiry of the Agreement; and
c - title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
7.4 - You acknowledge and agree that to the extent Data contains personal information, in collecting, holding and processing that information through the Service, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law.
7.5 - While we will take standard industry measures to back up all Data stored using the Service, you agree to keep a separate back-up copy of all Data uploaded by you onto the Service.
7.6 - You agree that we may store Data (including any personal information) in secure servers in Belgium, France, Europe or the United States and may access that Data (including any personal information) in Belgium, France, Europe or the United States from time to time.
7.7 - You may request removal of your personally identifiable Data (including User Profile and information that identifies your organization). Requests for Data removal can be initiated by email to firstname.lastname@example.org and upon removal will result in the termination of your access to the System.
7.8 - You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is Objectionable, incorrect or misleading.
8 - Subscription
8.1 - A subscription will give you access to the service.
8.2 - Subscriptions will automatically renew each month on the anniversary of the date upon which you subscribed, for a further term of one month .
8.3 - If you do not wish to renew your subscription you can cancel it at any time by editing your subscription in the My account section of the Service. If you do not Renew a Subscription you will no longer have access to the Data related to the System contained within that Subscription after the end of the subscription (“Expired Subscription”).
8.4 - We are using Paddle (https://paddle.com/) to handle subscription billing and as such, an invoice will be produced by Paddle for each payment made.
9 - Intellectual Property
9.1 - Subject to clause 9.2, title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
9.2 - Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property.
9.3 - If you provide us with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):
a - all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b - we may use or disclose the feedback for any purpose.
10 - Confidentiality
10.1 - Each party must, unless it has the prior written consent of the other party:
a - keep confidential at all times the Confidential Information of the other party;
b - effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and
c - disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1a and 10.1b.
10.2 - The obligation of confidentiality in clause 10.1 does not apply to any disclosure or use of Confidential Information:
a - for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
b - required by law (including under the rules of any stock exchange);
c - which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d - which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality.
11 - Warranties
11.1 - Each party warrants that it has full power and authority to enter into, and perform its obligations under, these Terms.
11.2 - To the maximum extent permitted by law:
a - our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise are expressly excluded; and
b - we make no representation concerning the quality of the Service and do not promise that the Service will:
i - meet your requirements or be suitable for a particular purpose, including that the use of the Service will fulfil or meet any statutory role or responsibility you may have; or
ii - be secure, free of viruses or other harmful code, uninterrupted or error free.
11.3 - You agree and represent that you are acquiring the Service, and accepting these Terms, for the purpose of trade. The parties agree that:
a - to the maximum extent permissible by law, the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Service or these Terms; and
b - it is fair and reasonable that the parties are bound by this clause 11.3.
11.4 - Where legislation or rule of law implies into these Terms a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in these Terms. However, our liability for any breach of that condition or warranty is limited, at our option, to:
a - supplying the Service again; and/or
b - paying the costs of having the Service supplied again.
12 - Liability
12.1 - Our maximum aggregate liability under or in connection with these Terms or relating to the Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed an amount equal to the Fees paid by you relating to the Service in the previous Year (which in the first Year is deemed to be the total Fees paid by you from the Start Date to the date of the first event giving rise to liability).
12.2 - Neither party is liable to the other under or in connection with these Terms or the Service for any:
a - loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or
b - consequential, indirect, incidental or special damage or loss of any kind.
12.3 - Clauses 12.1 and 12.2 do not apply to limit our liability under or in connection with these Terms for:
a - personal injury or death;
b - fraud or willful misconduct; or
c - a breach of clause 10.
12.4 - Clause 12.2 does not apply to limit your liability:
a - to pay the Fees;
b - under the indemnity in clause 7.7; or
c - for those matters stated in clause 12.3a to 12.3c.
12.5 - Neither party will be responsible, liable, or held to be in breach of these Terms for any failure to perform its obligations under these Terms or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under these Terms, or by the negligence or misconduct of the other party or its personnel.
12.6 - Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Service.
13 - Term, Termination and Suspension
13.1 - Unless terminated under this clause 13, these Terms and your right to access and use the Service:
a - start on the Start Date; and
b - continue while you have at least one active Subscription.
13.2 - Either party may, by notice to the other party, immediately terminate these Terms and your right to access and use the Service if the other party:
a - breaches any material provision of these Terms, and the breach is not:
i - remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
ii - capable of being remedied; or
b - becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason.
13.3 - You may terminate these Terms and your right to access and use the Service by not renewing your Subscriptions.
13.4 - Termination of these Terms does not affect either party’s rights and/or obligations that accrued before that termination.
13.5 - On termination of these Terms, you must pay all Fees for the provision of the Service prior to that termination.
13.6 - No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any Fees that you have already paid.
13.7 - Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination of these Terms but subject to clause 13.8, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.
13.8 - At any time prior to one month after the date of termination, you may request:
a - a copy of any Data stored using the Service, provided that you pay our reasonable costs of providing that copy. On receipt of that request, we must provide a copy of the Data in a common electronic form. We do not warrant that the format of the Data will be compatible with any software; and/or
b - removal of the Data stored using the Service as outlined in clause 7.7, in which case we must use reasonable efforts to promptly remove that Data. To avoid doubt, we are not required to comply with clause 13.8a to the extent that you have previously requested removal of the Data.
13.9 - Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Service and/or delete, edit or remove the relevant Data if we consider that you or any of your personnel have:
a - undermined, or attempted to undermine, the security or integrity of the Service or any Underlying Systems;
b - used, or attempted to use, the Service:
i - for improper purposes; or
ii - in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
c - transmitted, inputted or stored any Data that breaches or may breach these Terms or any thirdparty right (including Intellectual Property Rights and privacy rights), or that is or may be Objectionable, incorrect or misleading; or
d - otherwise materially breached these Terms.
14.1 - Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
14.2 - No person other than you and us has any right to a benefit under, or to enforce, these Terms.
14.3 - For us to waive a right under these Terms, that waiver must be in writing and signed by us.
14.4 - If we need to contact you, we may do so by email. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with these Terms by emailing email@example.com.
14.5 - These Terms, and any dispute relating to these Terms or the Service, are governed by and must be interpreted in accordance with the laws of Belgium. Each party submits to the non-exclusive jurisdiction of the Courts of Belgiumin relation to any dispute connected with these Terms or the Service.
14.6 - Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 7.7, 9, 10, 12, 13.4 to 13.8 and 14.5, continue in force.
14.7 - If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
14.8 - Subject to clauses 3.1 any variation to these Terms must be in writing and signed by both parties.
14.9 - These Terms set out everything agreed by the parties relating to the Service, and supersede and cancel anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the Service that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from the Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 14.9.
14.11 - You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer.