Agreement between user and Swirly Music LLC
Welcome to Swirly Music. The Swirly Music website (the “Site”) is comprised of various web pages operated by Swirly Music LLC, (“Swirly Music.”). The tools, functions and services of Swirly Music are offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein (the “Terms”). Your use of Swirly Music constitutes your agreement to all such Terms. Please read these terms carefully, and keep a copy of them for your reference. Because these Terms may be modified in the future, we ask you to review the Terms often.
These Terms apply to casual visitors, site members, parties who offer their compositions to the public via Swirly Music, and parties who purchase copies of sheet music via Swirly Music.
We may post user guidelines, policies or rules (collectively referred to as “guidelines) on our site. All such guidelines are incorporated by reference as if fully set forth within these Terms.
Swirly Music is an Ecommerce Site and an Advertising Platform
Swirly Music offers a convenient solution for self-published composers to make their work available in print for purchase online. Swirly Music is not a music publisher, merely a distributor and advertising platform for your printable compositions and related content. Swirly Music will not, and is under no obligation, to provide music-publishing services to you. As such, Swirly Music will not be involved with the negotiation of any performance license of your compositions and we are not associated in any manner with the Harry Fox Agency. We will also not endeavor to perfect or protect your copyrights and you agree that we do not have any obligation regarding protecting your intellectual property from infringement nor do we have any duty to enforce your copyrights via a copyright infringement action or any other legal cause of action. Any music that your place on Swirly Music is potentially available to copyright infringement, as such, it is your duty and responsibility to ensure that you have registered the copyright for each of your compositions with Copyright.gov prior to the publication of your compositions via Swirly Music.
If you are a copyright owner, you agree to proceed to Copyright.gov before making any composition available for sale on Swirly Music and you agree to read the FAQS about copyrights that are published on Copyright.gov and to register each and every copyright via Copyright.gov prior to making your copyrighted material available for purchase on Swirly Music. Your legal rights are greatly reduced if infringement takes place prior to copyright registration. Please see Copyright.gov for further details.
Visiting Swirly Music or sending emails to Swirly Music constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.
If you use this site, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You may not assign or otherwise transfer your account to any other person or entity. You acknowledge that Swirly Music is not responsible for third party access to your account that results from theft or misappropriation of your account. Swirly Music and its associates reserve the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.
Swirly Music does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use Swirly Music only with permission of a parent or guardian.
Swirly Music imposes a membership fee to those users who wish to offer their compositions and scores for sale to the general public. The current fee schedule, which is subject to change, is posted on our Site.
Payments to Composer Members
We are required to report payments to the IRS under certain circumstances. This may require us to obtain your tax ID in order for us to file the appropriate IRS 1099 form or other legal tax document. Payments for the sale of your music shall be made on a monthly basis. You shall be paid forty percent (40%) of all sales of your music. Should your membership fee be in arrears, you authorize Swirly Music to deduct any such arrearages from sales proceeds owed to you by Swirly Music. Swirly Music reserves the right to cancel any sale and to refuse to make payment for any sale where Swirly Music, in it’s sole discretion, has deemed that the sale is due to the unauthorized use of any credit card or financial account.
Payments Made by Members
YOU HEREBY AUTHORIZE SWIRLY MUSIC TO BILL YOUR CREDIT CARD OR PAYMENT ACCOUNT THE FEES LISTED ON THE SITE FOR THE ITEM OR MATERIAL ORDERED BY YOU AND FOR ANY MEMBERSHIP FEES. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such taxes, levies or duties.
All orders are printed on demand and may not be returned unless they are defective or there is an error in shipping and you have not received your order. Please make sure your cart has the correct items in it before checking out. Refund must be requested within 14 days of receipt. Because of the nature of digital content, there are no refunds for download orders. To request a refund, please write to email@example.com. Requests for refunds may take up to thirty (30) days to be resolved.
Links to third party sites/Third party services
Swirly Music may contain links to other web sites (“Linked Sites”). The Linked Sites are not under the control of Swirly Music and Swirly Music is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Swirly Music is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Swirly Music of the site or any association with its operators.
Certain services made available via Swirly Music are delivered by third party sites and organizations. By using any product, service or functionality originating from the Swirly Music domain, you hereby acknowledge and consent that Swirly Music may share such information and data with any third party with whom Swirly Music has a contractual relationship to provide the requested product, service or functionality on behalf of Swirly Music users and customers.
No unlawful or prohibited use of any Intellectual Property
All content included as part of the Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of Swirly Music or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, distribute, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, tools, services or functions in whole or in part, found or offered through the Site. Swirly Music content is not for resale. Your use of the Site does not entitle you to make any unauthorized use of any content, and in particular you will not delete or alter any proprietary rights or attribution notices in any content.
Purchased and Viewed Scores
Swirly Music may offer users the ability to view all or part of any score prior to purchase. You may not “screen capture” or otherwise duplicate or copy any score, composition, sheet music or any related text, graphic, sound file or any other content of any and all nature that you encounter on Swirly Music. When you purchase sheet music via Swirly Music, you do not obtain any rights in excess of or in addition to those you obtain when you purchase sheet music at your local brick and mortar store.
You will use purchased content solely for your own personal use, and will make no other use of the content without the express written permission of Swirly Music and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Swirly Music or our licensors except for the licenses that may be expressly authorized by these Terms. All performance rights of any and all nature are reserved and such performance licenses must be obtained from the copyright owner or music publisher related to each composition. Mechanical licenses must be obtained, and paid for in advance via a pre-established account, with the ongoing responsibility of further royalty payments and accounting requirements, only if available, via the Harry Fox Agency, or directly from the copyright owner or music publisher for the related composition.
Regarding the copyright to each composition or score
Swirly Music does not own the copyright to the compositions or scores that are placed on the Swirly Music site by users. All such copyrights remain solely owned by their individual owner. Each user who places any such copyrighted composition or score upon Swirly Music grants Swirly Music a limited, revocable, transferable license to publish the composition in its entirety on the Internet via our Site, and to distribute the music via sales to consumers. Each copyright owner who places their scores or compositions on Swirly Music assumes the risk of copyright infringement and agrees that they HOLD Swirly Music HARMLESS from any losses, damages, statutory awards, attorney’s fees, fees, and costs related to any third party copyright infringement. Further, each user agrees that Swirly Music does is not responsible for any causes of action regarding “contributory copyright infringement” under the law in that each user understands that the user is accepting the sole risk of any possible harm, loss or damage, including copyright infringement, through the user’s voluntary use of the tools, services and functions offered and provided by Swirly Music, which necessarily includes the publication of each composition in such a manner that each third party Site user may view the entirety of each copyrighted work, without paying a viewing fee, in order to make an informed and intelligent decisions regarding the potential purchase of the sheet music for that composition or score.
The Service is controlled, operated and administered by Swirly Music from our offices within the USA. If you access the Service from a location outside the USA, you are responsible for compliance with all local laws. You agree that you will not use the Swirly Music Content accessed through Swirly Music in any country or in any manner prohibited by any applicable laws, restrictions or regulations.
Intellectual Property owned by Swirly Music
All intellectual property owned by Swirly Music, including trademarks, trade dress, copyrights, patents, ideas, concepts and inventions belong solely to Swirly Music and may not be used, copied, distributed, or published without the prior written consent of Swirly Music.
You agree to indemnify, defend and hold harmless Swirly Music, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Site or services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. Swirly Music reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Swirly Music in asserting any available defenses.
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. SWIRLY MUSIC, WEB SOLUTIONS AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.
SWIRLY MUSIC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. SWIRLY MUSIC, WEB SOLUTIONS AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Swirly Music reserves the right, in its sole discretion, to terminate your access to the Site and the related services or any portion thereof at any time, without notice. To the maximum extent permitted by law, this agreement is governed by the laws of the State of California and you hereby consent to the exclusive jurisdiction and venue of courts in California in all disputes arising out of or relating to the use of the Site. Use of the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these Terms, including, without limitation, this section.
Should you violate these Terms of service by infringing the copyright of any user, the copyright owner will have the sole power to elect as to whether jurisdiction shall be A) in California, B), in the state or province in which you reside, or (C) in the state or province in which the copyright owner resides. Your purchase of any score or composition made available on this Site is your express indication to us that you waive any and all legal arguments regarding selection of forum and agree that you, should a copyright infringement action be filed against you by one of our users, agree to submit yourself to the jurisdiction of the forum selected by the copyright owner.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and Swirly Music as a result of this agreement or use of the Site. Swirly Music’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Swirly Music’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site or information provided to or gathered by Swirly Music with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Swirly Music with respect to the Site and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Swirly Music with respect to the Site. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent an d subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be written in English.
Changes to Terms
Swirly Music reserves the right, in its sole discretion, to change the Terms under which Swirly Music is offered. The most current version of the Terms will supersede all previous versions. Swirly Music encourages you to periodically review the Terms to stay informed of our updates. Your use of any tool, function or service provided by Swirly subsequent to any modification or change of the Terms is your express indication to us that you agree to be bound by the modified Terms.
Invalidity of any Term or Condition
Should any term be found by a court of law to be invalid, the remainder of these terms and conditions shall remain in full force and effect.
Transfer and Assignment. You may not assign or transfer these Terms, in whole or in part, without the written authorization of Swirly Music. Swirly Music may freely transfer these Terms, in whole or in part, without any prior notice to you.
Digital Millennium Copyright Act (DMCA)
Swirly Music respects copyright law. Should you find that a user is infringing your copyright, you may send a properly drafted DMCA take down notice to us at firstname.lastname@example.org.
Upon the receipt of a properly drafted DMCA notice, we will follow the procedures as established by the DMCA law. If your DMCA notice is not compliant with the requirements of the DMCA law, we will take no action until we receive a properly drafted DMCA notice. Please consult with your attorney for assistance with the rules and regulations of the DMCA law.
Swirly Music welcomes your questions or comments regarding the Terms:
Swirly Music LLC