The Tunelark website (“Website”) and related services (together with the Website, the “Service”), are operated by Tunelark, Inc. (“Tunelark,” “us,” or “we”). Access and use of the Service is subject to the following Terms and Conditions of Service (“Terms and Conditions”). By accessing or using any part of the Service, you represent that you have read, understood, and agree to be bound by these Terms and Conditions including any future modifications. Tunelark may amend, update or change these Terms and Conditions. If we do this, we will post a notice that we have made changes to these Terms and Conditions on the Website for at least 7 days after the changes are posted and will indicate at the bottom of the Terms and Conditions the date these terms were last revised. Any revisions to these Terms and Conditions will become effective the earlier of (i) the end of such 7-day period or (ii) the first time you access or use the Service after such changes. If you do not agree to abide by these Terms and Conditions, you are not authorized to use, access or participate in the Service.
Description of website and service and certain policies
The Service (i) allows all users to learn and practice music skills, including music theory skills, through the use of software-based educational content, (ii) allows teacher users to oversee student user progress and assign digital curriculum to student users, (iii) allows students to be connected with instructors from Tunelark’s network of independent instructors. Users interested in learning or practicing these music skills are presented with different types of educational activities. While users perform these activities, Tunelark may, at its sole discretion and at any time, update, change, suspend, make improvements to, or discontinue any aspect of the Service, temporarily or permanently. While Tunelark vetts instructors and seeks to work with exceptional instructors, it is not responsible for how the independent instructors in its network conduct themselves or teach. Instructors are completely independent from Tunelark and Tunelark is only responsible for providing logistics services and providing educational software. As part of the logistics services, Tunelark reserves the right to automatically charge customers for lessons/classes which they either took or canceled within 24 hours of the lesson/class start time. The money-back guarantee applies to a customer’s first Tunelark lesson only. If a customer is not satisfied with the first lesson they receive and does not want to continue with that instructor, Tunelark will, upon the customer’s request, either refund the amount the customer paid for the lesson or provide a lesson with a different instructor at no cost.
In connection with registering for and using the Service, you agree (i) to provide accurate, current and complete information about you and/or your organization as requested by Tunelark; (ii) to maintain the confidentiality of your password and other information related to the security of your account; (iii) to maintain and promptly update any registration information you provide to Tunelark, to keep such information accurate, current and complete; and (iv) to be fully responsible for all use of your account and for any actions that take place through your account.
Your representations and warranties
You represent and warrant to Tunelark that your access and use of the Service will be in accordance with these Terms and Conditions and with all applicable laws, rules and regulations of the United States and any other relevant jurisdiction, including those regarding online conduct or acceptable content, and those regarding the transmission of data or information exported from the United States and/or the jurisdiction in which you reside. You further represent and warrant that you have created or own any material you submit via the Service (including Activity Materials) and that you have the right, as applicable, to grant us a license to use that material as set forth above or the right to assign that material to us as set forth below. You further represent and warrant that you will carefully safeguard your password, user name, and account information, will not share your password or user name with any third party, and will not allow any third party to access your Tunelark account for any purpose.
You will not upload, display or otherwise provide on or through the Service any content that: (i) is libelous, defamatory, abusive, threatening, harassing, hateful, offensive or otherwise violates any law or infringes upon the right of any third party (including copyright, trademark, privacy, publicity or other personal or proprietary rights); or (ii) in Tunelark’s sole judgment, is objectionable or which restricts or inhibits any other person from using the Service or which may expose Tunelark or its users to any harm or liability of any kind. You will not use Tunelark to collect information about our testing process or to develop strategy, guides or other testing preparation material or a similar testing service.
Indemnification of Tunelark
You agree to defend, indemnify and hold harmless Tunelark and its directors, officers, employees, contractors, agents, suppliers, licensors, successors and assigns, from and against any and all losses, claims, causes of action, obligations, liabilities and damages whatsoever, including attorneys’ fees, arising out of or relating to your access or use of the Service, any false representation made to us (as part of these Terms and Conditions or otherwise), your breach of any of these Terms and Conditions,or any claim that any translation we provide to you is inaccurate, inappropriate or defective in any way whatsoever.
In the event of a Service Issue, Tunelark will, at its option, either (a) provide the user with a refund for the affected service, or (b) use reasonable efforts to resolve the Service Issue. For purposes of this Section, “Service Issue” means: (i) the inability to complete the service or music learning game due to a failure in the Website, or (ii) service or music learning game results are delivered more than 48 hours after the test is completed. Whether an issue constitutes a Service Issue will be determined by Tunelark in its reasonable discretion. The amount of any refund will depend on the nature of the Service Issue and will not exceed the total amount actually paid by the user for the affected test. To submit a valid claim for a refund, a user must (a) submit the Service Issue in writing via email to Tunelark at email@example.com within 24 hours after the Service Issue occurs, and respond to Tunelark’s requests for information or cooperation, (b) not have directly or indirectly caused the Service Issue, and (c) have met all service or music learning game requirements when taking the test prior to making a claim for a Service Issue.
No representations or warranties by Tunelark
The service, including all images, audio files and other content therein, and any other information, property and rights granted or provided to you by Tunelark are provided to you on an “as is” basis. Tunelark and its suppliers make no representations or warranties of any kind with respect to the Service, either express or implied, and all such representations and warranties, including warranties of merchantability, fitness for a particular purpose or non-infringement, are expressly disclaimed. Without limiting the generality of the foregoing, Tunelark does not make any representation or warranty of any kind relating to accuracy, service availability, completeness, informational content, error-free operation, results to be obtained from use, or non-infringement. Access and use of the Service may be unavailable during periods of peak demand, system upgrades, malfunctions or scheduled or unscheduled maintenance or for other reasons. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
Limitation on types of damages/limitation of liability
In no event will Tunelark be liable to you or any third party claiming through you (whether based in contract, tort, strict liability or other theory) for indirect, incidental, special, consequential or exemplary damages arising out of or relating to the access or use of, or the inability to access or use, the service or any portion thereof, including but not limited to the loss of use of the Service, inaccurate results, loss of profits, business interruption, or damages stemming from loss or corruption of data or data being rendered inaccurate, the cost of recovering any data, the cost of substitute services or claims by third parties for any damage to computers, software, modems, telephones or other property, even if Tunelark has been advised of the possibility of such damages. Tunelark’s liability to you or any third party claiming through you for any cause whatsoever, and regardless of the form of the action, is limited to the amount paid, if any, by you to Tunelark for the service in the 12 months prior to the initial action giving rise to liability. This is an aggregate limit. The existence of more than one claim hereunder will not increase this limit.
Tunelark may terminate your access and use of the Service immediately at any time, for any reason, and at such time you will have no further right to use the Service. You may terminate your Tunelark account at any time by following the instructions available through the Service. The provisions of these Terms and Conditions relating to the protection and enforcement of Tunelark’s proprietary rights, your representations and warranties, disclaimer of representations and warranties, release and indemnities, limitations of liability and types of damages, ownership of data and information, governing law and venue, and miscellaneous provisions shall survive any such termination.
Proprietary rights in service content and activity materials
All content available through the Service, including designs, text, graphics, images, information, software, audio and other files, and their selection and arrangement (the “Service Content”), are the proprietary property of Tunelark or its licensors. No Service Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, other than as expressly permitted in these Terms and Conditions. You may not use any data mining, robots, scraping or similar data gathering or extraction methods to obtain Service Content. As between you and Tunelark, all data, information and materials generated from your access and use of the educational activities made available on or through the Service, shall be exclusively owned by Tunelark, and you shall not have any right to use such Activity Materials except as expressly authorized by these Terms and Conditions. By using the Service, you hereby assign to Tunelark any and all rights, title and interest, including any intellectual property rights or proprietary rights, in the Activity Materials. All rights of Tunelark or its licensors that are not expressly granted in these Terms and Conditions are reserved to Tunelark and its licensors.
“Tunelark” and all other trademarks, service marks, graphics and logos used in connection with the Service are trademarks or service marks of Tunelark or their respective owners, and certain of them are registered with the United States Patent and Trademark Office. Access and use of the Service does not grant or provide you with the right or license to reproduce or otherwise use the Tunelark name or any Tunelark or third-party trademarks, service marks, graphics or logos.
Notice for claims of copyright violations and agent for notice
If you are a copyright owner and have a good faith belief that any material available through the service infringes upon your copyrights, you may submit a copyright infringement notification to Tunelark pursuant to the Digital Millennium Copyright Act by providing us with the following information in writing:
an electronic or physical signature of the copyright owner or the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service; your address, telephone number, and email address; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf. Please consult your legal counsel for further details or see 17 U.S.C. §512(c)(3). Tunelark’s Agent for Notice of claims of copyright infringement can be reached as follows:
By mail: 2530 Chilton Way Berkeley CA 94704 By email: firstname.lastname@example.org
Governing law and arbitration
These Terms and Conditions, its subject matter and Tunelark’s and your respective rights under these Terms and Conditions shall be governed by and construed under the laws of the State of California, United States of America, excluding the conflict of law provisions of that or any other jurisdiction. Any dispute arising between you and Tunelark will be resolved by binding arbitration. The arbitration shall be conducted by a single arbitrator in the County of San Francisco in the State of California. Unless otherwise expressly required by applicable law, each party shall bear its own attorneys’ fees without regard to which party is deemed the prevailing party in the arbitration proceeding.
This agreement was originally written in English (US). To the extent any translated version of this agreement conflicts with the English version, the English version controls.
These Terms and Conditions constitute the entire agreement between Tunelark and you concerning the subject matter hereof. In the event that any of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms and Conditions shall otherwise remain in full force and effect. A waiver by Tunelark or you of any provision of these Terms and Conditions or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Tunelark may assign its rights or obligations under these Terms and Conditions without condition. These Terms and Conditions will be binding upon and will inure to the benefit of Tunelark and you, and Tunelark’s and your respective successors and permitted assigns.