MERRY MONSTERS STUDIO
TERMS & CONDITIONS
Last updated on 23 July 2020.
Welcome to Merry Monsters Studio!
To make it easier for you to understand the terms on which we provide our Application, we've tried to keep these terms of use (Terms) as simple as possible by using plain English.
When we talk about "Merry Monsters Studio", "we," "our," or "us" in these Terms, we are referring to Percival Gana operating under the business name Merry Monsters Studio, an Australian business with ABN 33 844 294 493.
When we talk about the “Application” in these Terms, we are referring to our mobile applications for musical education available on the Apple iOS Store and the Google Play Store, our website and any associated services we offer. When we talk about the “Games” we are referring to the games accessible through the Application.
We've also used a few other capitalised words and phrases as shorthand to refer to recurring concepts. Each of these are defined in bold and in brackets after the concepts are first mentioned.
1. INTRODUCTION
These Terms set out the terms and conditions that apply when you use the Application.
By using the Application, playing the Games, ordering any goods or services through the Application, or otherwise engaging with the content on the Application, you represent and warrant that you:
Please have a careful read through these Terms before using the Application. If you don't agree to these Terms, please don't use the Application.
We may modify our Terms from time to time. If we do, we will post a note on this page or email you. If you continue to use the Application after we modify our Terms, you'll be taken to have agreed to the Terms as modified.
2. FEES
2.1 FEES
(a) We offer a no cost plan which will allow you to access some features of our Application (Free Version). Certain additional features and Games will be locked and not accessible in the Free Version of the Application.
(b) To access certain additional features and Games (Paid Version), we require the payment of fees (Fees).
(c) These Fees may be paid via the mobile application store or otherwise depending on our current prices and billing process. The Fees for certain additional features and Games will be displayed in the Application and at the time of checkout.
2.2 FAILURE TO PAY
If Fees for the Paid Version are not paid when they are due, we may revoke your access to the Application and require payment for you to continue accessing the Application.
2.3 PAYMENT METHODS
We may use third-party payment providers (Payment Providers) to collect Fees. The processing of payments by the Payment Provider will be, in addition to these Terms, subject to the terms, conditions and privacy policies of the Payment Provider and we are not liable for the security or performance of the Payment Provider. We reserve the right to correct, or to instruct our Payment Provider to correct, any errors or mistakes in collecting your payment.
3. REFUNDS
Except as otherwise set out on our website, we generally don't offer refunds for any additional features or Games accessible through the Paid Version, and any refunds we issue will be solely at our discretion. Please let us know if you have any issues with our Games or Application that you think should entitle you to a refund and we'll consider your situation.
4. ACCEPTABLE USE
We'll need you to make a few promises about the way you'll use the Application.
You agree:
(a) not to copy, reproduce, translate, adapt, vary or modify the Application without our express consent;
(b) not to use the Application in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity;
(c) not to use the Application for the purpose of distributing unsolicited commercial content, junk mail, spam, bulk content or harassment;
(d) not to attempt to breach the security of the Application or Merry Monsters Studio's system security, or otherwise interfere with the normal function of the Application, including by:
(i) scanning, probing or testing the Application for security vulnerabilities;
(ii) overload, flood, mailbomb, crash or submit a virus to the Application or Merry Monsters Studio's system; or
(iii) instigate or participate in a denial-of-service attack against the Application or Merry Monsters Studio's system; and
(e) to ensure that your employees, sub-contractors and other agents who you have authorised to use or access the Application comply with the Terms.
5. OUR CONTENT
Unless we indicate otherwise, all materials used in the Application (including text, graphics, logos, music, icons, sound recordings and software) are subject to intellectual property rights that are owned or licensed by us.
You can only access and use these materials for the sole purpose of enabling you to use the Application in accordance with the plan you are on, except to the extent permitted by law or where you have received prior written approval from us.
6. THIRD PARTIES
6.1 THIRD PARTY CONTENT
The Application may contain text, images, data and other content provided by a third party (Third Party Content). We're not responsible for any of this Third Party Content and we make no representation or warranty about the quality, suitability, accuracy, reliability, currency or completeness of any Third Party Content.
6.2 THIRD PARTY LINKS
The Application may also contain links to websites operated by third parties (Third Party Links). Third Party Links are provided for convenience and may not remain current or be maintained. We do not endorse and are not responsible for Third Party Links and have no control over or rights in linked websites.
6.3 THIRD PARTY TERMS AND CONDITIONS
By using the Application, or any other third party service, you acknowledge and agree that third party terms & conditions (Third Party Terms) may apply (including application store providers such as Apple and Google).
You agree to any Third Party Terms applicable to any third party goods and Application, and Merry Monsters Studio will not be liable for any loss or damage suffered by you in connection with such Third Party Terms.
6.4 OPERATION OF THE APP DEPENDENT ON THIRD PARTIES
You acknowledge and agree that the Application is powered by third party service providers and is available via third party stores Apple iOS Store and the Google Play Store. If following an act or omission (for example, an update) by such a third party service provider beyond the control of Merry Monster Studio, the Application can no longer function as it did at the date you have accepted this agreement, Merry Monster Studio will not be liable to you for any loss or damage you might suffer as a result.
7. NOTICE REGARDING APPLE
If you are accessing the Application from the Apple, Inc. (Apple) iOS Store, you acknowledge and agree:
(a) these Terms are between you and Merry Monsters Studio and not with Apple. Apple is not responsible for the Application or any content available on the App;
(b) Apple has no obligation whatsoever to furnish any maintenance and support Application for the App;
(c) in the event of any failure of Merry Monsters Studio to conform to any applicable warranty, you may notify Apple, and Apple will refund the price for the Application. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs of expenses attributable to any failure to conform to any warranty will be Merry Monsters Studio’s responsibility;
(d) Apple is not responsible for addressing any claims by you or any third party relating to the Application, including, but not limited to:
(i) product liability claims;
(ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection, privacy, or similar legislation;
(e) in the event of any third party claim that the Application or your use of the Application infringes any third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement and discharge of any such claim;
(f) that you represent and warrant that:
(i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting’” country; and
(ii) you are not listed on any U.S. Government list of prohibited or restricted parties;
(g) you must comply with applicable third party terms of agreement when using the App; and
(h) Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
8. APPLICATION LIMITATIONS
(a) The Application are made available to you strictly on an 'as is' basis. We can't guarantee, and make no warranties, to the extent permitted by law, that:
(i) the Application will be free from errors or defects;
(ii) messages sent through the Application will be delivered promptly, or delivered at all;
(iii) information you receive or supply through the Application will be secure or confidential; or
(iv) any information provided through the Application is accurate or true, including content provided through the Games.
(b) The Application and the Games provided in the Application are limited in scope and are intended to be a supplementary tool for learning music. The Application and Games are not a substitute for professional music tuition and we do not represent that using the Application will help you to achieve a particular outcome.
(c) We do not guarantee, and make no warranties, to the extent permitted by law, that the Application will be accessible and available at all times.
9. SECURITY
We do not accept responsibility for any unauthorised use, destruction, loss, damage or alteration to your data or information, your computer systems, mobile phones or other electronic devices arising in connection with use of the Application. You should take your own precautions to ensure that the process which you employ for accessing the Application does not expose you to the risk of hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
10. WARRANTIES
(a) To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
(b) Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or Application provided.
11. LIABILITY
(a) (Limitation of liability) To the maximum extent permitted by applicable law, the maximum aggregate liability of us to you in respect of loss or damage sustained by you under or in connection with this agreement is limited to the total Fees paid to us by you in the 6 months preceding the first event giving rise to the relevant liability.
(b) (Indemnity) You agrees at all times to indemnify and hold harmless Merry Monsters Studio and our officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or the your officers’, employees’ or agents’:
(i) breach of any term of this agreement; or
(ii) negligent, fraudulent or criminal act or omission.
(c) (Consequential loss) We will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or Application provided by the Service Provider, except to the extent this liability cannot be excluded under the Competition and Consumer Act 2010 (Cth) or any other applicable law.
12. CANCELLATION
12.1 CANCELLATION BY US
To the extent permitted by law, we reserve the right to terminate your access to any or all of the Application or any part of the Application at any time without notice, for any reason, provided that we refund to you any Fees for Application which you have paid for and not received.
We may terminate your access to any or all of the Application at any time without notice without issuing a refund if you breach any provision of these Terms.
12.2 EFFECT OF CANCELLATION
Upon cancellation, termination or expiry of your access to the Application, we will delete any data associated with your account. You won't be able to recover any of this after cancellation, termination or expiry of access to the Application, so we recommend you back up anything important to you. We won't be responsible to you for, and expressly disclaim any liability for, any cost, loss, damages or expenses arising out the cancellation, termination or expiry of access to the Application.
12.3 SURVIVAL
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of this agreement will survive and be enforceable after such termination or expiry.
13. PRIVACY
You agree to be bound by the clauses outlined in Merry Monsters Studio's Privacy Policy, which can be found <here>
14. LOCATION OF APP
Merry Monsters Studio controls the operation of the Application from headquarters located in Australia. The Application or parts thereof may be operated from, or hosted on mirrors or servers, at various locations outside of Australia from time to time.
We make no representation or warranty that all of the features of the Application will be available to you outside of Australia or that they are permitted to be accessed outside Australia.
You're solely responsible for your decision to use the Application from other locations and you acknowledge that such use may be subject to, and you are responsible for, compliance with applicable local laws in relation to your use of the Application.
15. NOTICES
(a) A notice or other communication to a party under this agreement must be:
(i) in writing and in English; and
(ii) delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement ( eamesgana@merrymonsters.com ). The parties may update their Email Address by notice to the other party.
(b) Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party's Email Address, notice will be taken to be given:
(i) 24 hours after the email was sent; or
(ii) when replied to by the other party,
whichever is earlier.
16. GENERAL
16.1 GOVERNING LAW AND JURISDICTION
This agreement is governed by the law applying in New South Wales, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
16.2 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
16.3 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
16.4 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
16.5 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
16.6 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
16.7 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
16.8 INTERPRETATION
(a) (singular and plural) words in the singular includes the plural (and vice versa);
(b) (gender) words indicating a gender includes the corresponding words of any other gender;
(c) (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) (person) a reference to "person" or "you" includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
(e) (party) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
(f) (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
(g) (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
(h) (headings) headings and words in bold type are for convenience only and do not affect interpretation;
(i) (includes) the word "includes" and similar words in any form is not a word of limitation; and
(j) (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.