THE FOLLOWING TERMS OF SERVICE (THESE “TOS”) WILL BE DEEMED INCORPORATED BY REFERENCE INTO EACH ORDER (AS DEFINED BELOW) BETWEEN MUSE DEV, INC. A DELAWARE CORPORATION DBA MUSEDEV (“MUSEDEV”) AND THE LICENSEE IDENTIFIED THEREIN (“LICENSEE”).
YOUR RIGHT TO ACCESS AND USE THE SERVICE (AS DEFINED BELOW), WHETHER OR NOT AN ORDER HAS BEEN EXECUTED BETWEEN MUSEDEV AND YOU (OR AN ENTITY THAT YOU REPRESENT), IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TOS. BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND AND ABIDE BY THESE TOS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY, ITS AFFILIATES AND ALL USERS (AS DEFINED BELOW) WHO ACCESS THE SERVICE ON BEHALF OF SUCH COMPANY OR ENTITY TO THESE TOS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" WILL REFER TO SUCH ENTITY, ITS AFFILIATES AND USERS ASSOCIATED WITH SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TOS, YOU MAY NOT USE THE SERVICES.
- Acceptance of Terms. MuseDev provides its Code Analysis Services to you through its web site located at https://muse.dev (the “Site”), pursuant to these TOS. The “Service” includes (a) the Site, (b) MuseDev’s continuous integration services and related technologies, and (c) all software (including the Software, as defined below), data, documentation, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). By entering into a Service order form, or other ordering document, web-based or email-based ordering mechanism or registration process (each an “Order”) or otherwise downloading, accessing or using the Service, Licensee unconditionally accepts and agrees to all of the terms of these TOS. Licensee represents that it has the authority to bind itself and its affiliates to the terms of these TOS, and, accordingly, the term “Licensee” will refer to such entity. If Licensee is an individual using the Service, the terms “Licensee” and “User” will each apply to such individual using the Service for the purposes of these TOS. Capitalized terms not defined herein will be given the meaning set forth in the applicable Order. These TOS will apply to all use by Licensee and Users (as defined below) of the Service. “User” means an individual who is authorized by Licensee to use the Service, for whom Licensee (or MuseDev at Licensee’s request) has supplied a user identification and password either manually or using a Non-MuseDev Application (as defined below) (e.g., GitHub via oAuth). Users may include, for example, Licensee’s employees, consultants, contractors and agents, and third parties that Licensee transacts business. MuseDev may change these TOS from time to time by providing Licensee and Users at least thirty (30) days notice either by emailing the email address associated with Licensee’s or User’s account or by posting a notice on the Service. The revised TOS will become effective thirty (30) days after MuseDev posts the updated TOS on the Service or e-mails Licensee and/or Users notice of a change to these TOS. If any change to these TOS is not acceptable to a Licensee or a User, such User will stop using the Service or, in the case of Licensee, will send a cancellation e-mail to support@MuseDev.com
- License and Restrictions; Licensee and User Obligations with Regard to Use of the Service.
a). License. Any software that may be made available by MuseDev in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to all the terms of these TOS and payment of all fees described in an Order, during the Term (as defined below) MuseDev grants Licensee and each User a non-sublicensable, non-exclusive, non-transferable license to use the object code of any Software and Content solely in connection with the Service and any terms and procedures MuseDev may prescribe from time to time.
b). Restrictions. Subject to these TOS, Licensee and Users may access and use the Service and Content only for lawful purposes. All rights, title and interest in and to the Service and its components, Content and all related intellectual property rights will remain with and belong exclusively to MuseDev. Licensee will maintain the copyright notice and any other notices that appear on the Service on any copies and any media. Neither Licensee nor any User will (or allow any third party to) (i) modify, reverse engineer or attempt to hack or otherwise discover any source code or underlying ideas or algorithms of the Service (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) sell, resell, license, sublicense, provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Service or Content for the benefit of any third party, (iii) use the Service or Content, or allow the transfer, transmission, export, or re-export of the Service or Content or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency, (iv) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (v) use the Service to store or transmit Malicious Code (as defined below), (vi) interfere with or disrupt the integrity or performance of the Service or its components, (vii) attempt to gain unauthorized access to the Service or its related systems or networks, (viii) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, (ix) copy the Service or any part, feature, function or user interface thereof, access the Service in order to build a competitive product or service or (x) use the Service for any purpose other than as expressly licensed herein. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
c). Licensee Obligations with Regard to Use of the Service. Any User of the Service must be thirteen (13) years old or older to use the Service. Licensee will (i) be responsible for Users’ compliance with these TOS, (ii) be responsible for the quality and legality of Licensee Content (as defined below) and the means by which Licensee acquired Licensee Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify MuseDev promptly of any such unauthorized access or use, (iv) use the Service only in accordance with the MuseDev’s Service documentation and applicable laws and government regulations, (v) comply with terms of service of Non-MuseDev Applications (as defined below) with which Licensee uses the Service. Licensee and Users are responsible for maintaining the security of User’s accounts and passwords. MuseDev cannot and will not be liable for any loss or damage from Licensee’s or any User’s failure to comply with this security obligation. Licensee and Users may not access the Service, if they are, or are acting on behalf or for the benefit of, MuseDev’s direct competitor, except with MuseDev’s prior written consent. In addition, Licensee and Users may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. “Licensee Content” means all data, software (including source code), information, text, audio files, graphic files, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service submitted by or for Licensee to the Service or collected and processed by or for Licensee using the Service, excluding Content and Non-MuseDev Applications. “Non-MuseDev Applications” means a web-based or offline software application that is provided by Licensee or a third party and interoperates with the Service.
d). Enforcement. Licensee will ensure that all Users comply with the terms and conditions of these TOS, including, without limitation, with Licensee’s obligations set forth in Sections 3(b) and 3(c). Licensee will promptly notify MuseDev of any suspected or alleged violation of these TOS and will cooperate with MuseDev with respect to: (i) investigation by MuseDev of any suspected or alleged violation of these TOS and (ii) any action by MuseDev to enforce these TOS. MuseDev may, in its sole discretion, suspend or terminate any User’s access to the Service with or without written notice (including, but not limited to e-mail) to Licensee in the event that MuseDev reasonably determines that a User has violated these TOS. Licensee will be liable for any violation of these TOS by any User.
- Evaluations. From time to time, Licensee may be invited to try certain products at no charge for a free trial or evaluation period or if such products are not generally available to licensees (collectively, “Evaluation Services”). Evaluation Services will be designated or identified as beta, pilot, evaluation, trial or the like. Notwithstanding anything to the contrary, Evaluation Services are licensed for Licensee’s internal evaluation purposes only (and not for production use), are provided “as is” without warranty or indemnity of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Service trial period will expire thirty (30) days from the trial start date. Notwithstanding the foregoing, MuseDev may discontinue Evaluation Services at any time at its sole discretion and may never make any Evaluation Service generally available. MuseDev will have no liability for any harm or damage arising out of or in connection with any Evaluation Service.
- Provision of the Service; Support.
a). As part of the registration process, each User will generate a user name and password for its MuseDev account (“Account”) either manually or through a Non-Muse Application (e.g., GitHub via OAuth). Each User is responsible for maintaining the confidentiality of their login, password and Account and for all activities that occur under any such logins or the Account. MuseDev reserves the right to access Licensee’s and any User’s Account in order to respond to Licensee’s and Users’ requests for technical support. MuseDev has the right, but not the obligation, to monitor the Service, Content, or Licensee Content. Licensee further agrees that MuseDev may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
b). MuseDev will (a) make the Service available to Licensee and its Users pursuant to these TOS and the applicable Order, (b) provide community-based support via MuseDev’s Discuss site located at https://discuss.MuseDev.com (or successor URL) for the Service to Licensee and Users at no additional charge, and/or upgraded support if purchased pursuant to an Order, and (c) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which MuseDev will give at least eight (8) hours electronic notice and which MuseDev will schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond MuseDev’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving MuseDev’s employees), Internet service provider failure or delay, Non-MuseDev Application, or denial of service attack.
c). Licensee understands that the operation of the Service, including Licensee Content, may be unencrypted and involve (i) transmissions over various networks; (ii) changes to conform and adapt to technical requirements of connecting networks or devices and (iii) transmission to MuseDev’s third party vendors and hosting partners solely to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, Licensee acknowledges that Licensee bears sole responsibility for adequate backup of Licensee Content. MuseDev will have no liability to Licensee for any unauthorized access or use of any of Licensee Content, or any corruption, deletion, destruction or loss of any of Licensee Content.
e). Licensee will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Licensee will be responsible for ensuring that such Equipment is compatible with the Service (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in MuseDev’s published policies then in effect. Licensee will also be responsible for maintaining the security of the Equipment, Licensee’s Account, all passwords (including but not limited to administrative and User passwords) and files, and for all uses of Licensee Account or the Equipment with or without Licensee’s knowledge or consent.
- Fees and Payment.
a). Licensee will pay MuseDev the fees set forth in an Order in accordance with the terms set forth therein; provided that MuseDev may change any applicable fees upon thirty (30) days’ notice at any time and such new fees will become effective for any subsequent renewal Term. All payments will be made in U.S. dollars. Any payments more than thirty (30) days overdue will bear a late payment fee of one and one-half percent (1.5%) per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all taxes, shipping, duties, withholdings and the like, as well as all pre-approved out of pocket expenses incurred by MuseDev in connection with any consulting and/or support services, promptly upon invoice. If Licensee is paying any fees by credit card, Licensee will provide MuseDev complete and accurate information regarding the applicable credit card. Licensee represents and warrants that all such information is correct and that Licensee is authorized to use such credit card. Licensee will promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. Licensee hereby authorizes MuseDev to bill such credit card in advance on a periodic basis in accordance with the terms of these TOS and an Order, and Licensee further agrees to pay any charges so incurred. Licensee will maintain, and MuseDev will be entitled to audit, any records relevant to Licensee’s use of the Service hereunder. MuseDev may audit such records on reasonable notice at MuseDev’s cost (or if the audits reveal material non-compliance with these TOS, at Licensee’s cost).
b). For any upgrade in a subscription level for a month-to-month service plan, MuseDev will automatically charge Licensee the new subscription fee, effective as of the date the service upgrade is requested and for each subsequent one-month recurring cycle pursuant to the billing method applicable to Licensee. If MuseDev is providing Licensee the Service pursuant to a yearly service plan, MuseDev will immediately charge Licensee any increase in subscription level plan cost pursuant to the billing method applicable to Licensee, prorated for the remaining Term of Licensee’s yearly billing cycle; provided, however, any decrease in a subscription level plan cost will only take effect upon the renewal date of the then current yearly service plan. Licensee’s downgrading its subscription level may cause the loss of features or capacity of Licensee’s Account. MuseDev does not accept any liability for such loss.
c). If any amount owing by Licensee under these TOS for the Service is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts Licensee has authorized MuseDev to charge to Licensee’s credit card), MuseDev may, in its sole discretion and without limiting its other rights and remedies, suspend Licensee’s and any User’s access to the Service and/or otherwise limit the functionality of the Service until such amounts are paid in full.
d). Licensee agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MuseDev regarding future functionality or features.
- Term; Expiration and Termination. These TOS will continue in effect for the term and any renewal term as specified in an Order (collectively, the “Term”). If either party materially breaches these TOS, the other party will have the right to terminate the applicable Order and in the case where no Order exists, these TOS (and, in each case, all licenses granted herein) upon thirty (30) days (ten (10) days in the case of non-payment and immediately in the case of a breach of Sections 3(b)) written notice of any such breach, unless such breach is cured during such notice period. In the case of a free trial or MuseDev otherwise providing the Service at no cost to a Licensee, MuseDev will have, upon Licensee or any Users failing to use the Service for more than six (6) consecutive months, the right, in its sole discretion, to terminate all User Accounts of Licensee and terminate Licensee’s and all Licensee’s Users’ access to and use of the Service without notice. Upon expiration or termination of an Order or these TOS, Licensee will immediately be unable access and use the Service, all Licensee Content may be deleted from the Service at MuseDev’s sole discretion (such information cannot be recovered once Licensee’s Account or any User Account is terminated) and Licensee will return or destroy all copies of all Content and all portions thereof in Licensee’s possession and so certify to MuseDev, if such certification is requested by MuseDev. Sections 3(b) and 5 through 14 of these TOS, will survive termination or expiration of these TOS. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
- Indemnification. Licensee and each User will defend, indemnify and hold harmless MuseDev from all damages, settlements, attorneys’ fees and expenses related to any third-party claim, suit or demand (i) arising from Licensee or any User’s use of the Service or Content in breach of these TOS or in violation of applicable law, or (ii) alleging that the Licensee Content infringes or misappropriates such third party’s intellectual property rights or violates applicable law; provided Licensee is promptly notified of any and all threats, suits, claims and proceedings related thereto and given reasonable assistance by MuseDev (at Licensee’s cost). MuseDev reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this Section. In such case, Licensee and Users agree to cooperate with any reasonable requests in assisting MuseDev’s defense of such matter.
- DISCLAIMER OF WARRANTIES. THE SERVICE MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY MUSEDEV OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND MUSEDEV’S REASONABLE CONTROL, BUT MUSEDEV WILL USE REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE IN WRITING OR BY EMAIL OF ANY SCHEDULED SERVICE DISRUPTION. HOWEVER, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MUSEDEV EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LICENSEE AND USERS ACKNOWLEDGE THAT MUSEDEV DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES MUSEDEV MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY LICENSEE OR USERS FROM MUSEDEV OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TOS.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL MUSEDEV BE LIABLE TO LICENSEE, ANY USER OR ANY THIRD-PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES. INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, GOODWILL, OR OTHER INTANGIBLE LOSSES OR (B) FOR ANY DIRECT DAMAGES, COST, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO LICENSEE’S OR USER’S CLAIM OR, IF NO FEES APPLY, ONE HUNDRED DOLLARS (US$100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISK UNDER THESE TOS BETWEEN THE PARTIES AND PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TOS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE OR SOME USERS. IN THE STATES, MUSEDEV’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
- Proprietary Rights; Limited License to MuseDev; Feedback; Communication.
a). Reservation of Rights. Subject to the limited rights expressly granted hereunder, MuseDev and its licensors reserve all of MuseDev’s and its licensors right, title and interest in and to the Service, including all of MuseDev’s and its licensors related intellectual property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
b). License to MuseDev by Licensee to Host Licensee Content. Licensee hereby grants MuseDev a worldwide, non-exclusive, royalty-free, fully paid, sublicensable, limited-term license to host, copy, transmit and display Licensee Content that Licensee or any User posts to the Service, solely as necessary for MuseDev to provide the Service in accordance with these TOS. Subject to the limited licenses granted herein, MuseDev acquires no right, title or interest from Licensee or Licensee’s licensors under these TOS in or to Licensee Content.
c). License by Licensee to Use Feedback. Licensee hereby grants to MuseDev a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by Licensee or Users relating to the operation of the Service.
d). Communication. MuseDev may contact you about (a) your account or use of the Service; and (b) with general updates it thinks may be of interest to you. As long as you continue to use the Service, you consent to Muse being able to contact you about your account or use of the Service. You also consent to Muse contacting you with general updates, and you may withdraw this consent at any time and without regard to your use of the Service.
- Confidentiality. Any technical, financial, business or other information provided by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) and designated as confidential or proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”) will be held in confidence and not disclosed and will not be used except to the extent necessary to carry out the Receiving Party’s obligations or express rights hereunder, except as otherwise authorized by the Disclosing Party in writing. For clarity, the Service and Content will be deemed Confidential Information of MuseDev whether or not otherwise designated as such. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). These obligations will not apply to information that (i) was previously known by the Receiving Party, as demonstrated by documents or files in existence at the time of disclosure, (ii) is generally and freely publicly available through no fault of the Receiving Party, (iii) the Receiving Party otherwise rightfully obtains from third parties without restriction, or (iv) is independently developed by the Receiving Party without reference to or reliance on the Disclosing Party’s Confidential Information, as demonstrated by documents or files in existence at the time of disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. In the event that such protective order or other remedy is not obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.
- Protection of Confidential Licensee Content; Security. MuseDev will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Licensee Content that is Licensee’s Confidential Information (“Confidential Licensee Content”). Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Confidential Licensee Content by MuseDev’s personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 11 (Confidentiality) above, or (c) as Licensee expressly permits in writing.
- DMCA Copyright Policy. MuseDev has adopted the following policy toward copyright infringement on the Service in accordance with the Digital Millennium Copyright Act (the “DMCA”). The address of MuseDev’s Designated Agent for copyright takedown notices (“Designated Agent”) is listed below.
- Reporting Instances of Copyright Infringement. If you believe that Content residing or accessible on or through the Service infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent at the address below:
a). Identification of the work or material being infringed.
b). Identification of the material that is claimed to be infringing, including its location, with sufficient detail so that MuseDev is capable of finding it and verifying its existence.
c). Contact information for the notifying party (the “Notifying Party”), including name, address, telephone number, and email address.
d). A statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law.
e). A statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner.
f). A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
- Forwarding & Account Actions. MuseDev may forward information provided in a notice of copyright infringement to the Subscriber who posted the allegedly infringing content. After removing material pursuant to a valid DMCA notice, MuseDev will immediately notify the Subscriber responsible for the allegedly infringing material that it has removed or disabled access to the material. MuseDev may terminate, under appropriate circumstances, the Accounts of Subscribers who are repeat copyright infringers, and reserves the right, in its sole discretion, to terminate any Subscriber for actual or apparent copyright infringement.
- Submitting a DMCA Counter-Notification. If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with MuseDev by providing the following information to the Designated Agent at the address below:
a). The specific URLs of material that MuseDev has removed or to which MuseDev has disabled access.
b). Your name, address, telephone number, and email address.
c). A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the federal district courts located in Portland, Oregon if your address is outside of the United States), and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
d). The following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”Your signature.
- Forwarding and Account Actions. Upon receipt of a valid counter-notification, MuseDev will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If MuseDev does not receive any such notification within ten (10) days, MuseDev may restore the material to the Service.
- Designated Agent.
Muse Dev, Inc.
ATTN: General Counsel
SW 6th Ave., Ste 300
Portland, OR 97204
- Repeat Infringer Policy. In accordance with the DMCA and other applicable law, MuseDev has adopted a policy of terminating access to the Service, and in appropriate circumstances and at MuseDev’s sole discretion, for Users who are deemed to be repeat infringers. MuseDev may also and at its sole discretion limit access to the Site and/or terminate the access of Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
- Miscellaneous. Neither the TOS nor the licenses granted hereunder are assignable or transferable by either party without the prior written consent of the other party, except that either party may assign and transfer these TOS without consent to a successor to all or substantially all of its assets or business; any attempt to assign in violation of the foregoing will be void. There are no third-party beneficiaries under these TOS. The parties are independent contractors. These TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Any notice, report, approval or consent required or permitted hereunder will be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of these TOS will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these TOS will otherwise remain in full force and effect and enforceable. These TOS will be construed pursuant to the laws of the State of Oregon and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any proceeding relating to these TOS or the subject matter hereof will be brought only in federal or state court in the Portland, Oregon, and each party hereby generally and unconditionally submits to and accepts the jurisdiction of such courts. The prevailing party in any action to enforce these TOS or any Order will be entitled to recover its attorney’s fees and costs in connection with such action. The Service is controlled and offered by MuseDev from its facilities in the United States, and the MuseDev servers and data centers are located in the United States. If Licensee chooses to access and use the Service from outside the United States, then Licensee and all Users acknowledge that Licensee and Users are transferring Licensee Content into the United States for storage and processing and that Licensee is responsible for compliance with all local laws applicable to such transfer, storage and processing. Any waivers or amendments will be effective only if made in writing. These TOS and each Order is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of these TOS. Licensee represents that it is not a government agency and it is not acquiring the license pursuant to a government contract or with government funds. Except for the payment obligations hereunder, non-performance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, or any other reason where failure to perform is beyond the reasonable control of and not caused by the negligence of the non-performing party. Except as otherwise specified in these TOS, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery, the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Licensee will be addressed to the relevant billing contact designated by Licensee on an Order. All other notices to Licensee will be addressed to the relevant contact designated by Licensee on an Order. All notices to MuseDev will be sent to MuseDev to the applicable MuseDev contact at the address set forth on an Order.