Terms of service.

Smashing Metronomes, Inc.

Last Modified: April 30, 2024

This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Smashing Metronomes, Inc., along with our subsidiaries and affiliates (collectively referred to as “Smashing Metronomes,” “we,“ “us,” or “our“), a North Carolina Corporation ("Company"). This Agreement governs your use of the NoteNerd suite of applications, (including all related documentation, the "Application"). You acknowledge that this Agreement is not between you and Apple Inc., nor between you and Alphabet Inc. or Google LLC. The Application is licensed, not sold, to you.

BY DOWNLOADING AND USING THE APPLICATION FROM APPLE’S APP STORE AND/OR GOOGLE’S PLAY STORE AND ANY UPDATE THERETO, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE: (I) OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT OR (II) 13 YEARS OR OLDER AND HAVE THE PERMISSION OF YOUR PARENT OR GUARDIAN TO USE THE APPLICATION AS A MINOR (IF YOU ARE UNDER THE AGE OF 13, YOU SHALL NOT USE THE APPLICATION); (C) 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; (D) ARE NOT LISTED ON ANY U.S. GOVERNMENT LISTED OF PROHIBITED OR RESTRICTED PARTIES; AND (e) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

Your access to and use of the Application are also subject to the Company’s Terms of Use and Privacy Policy, which are incorporated herein by this reference.

  • License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation; if you use the Application via an Apple’s App Store, this license is further limited to use on Apple-branded products that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that the Application may be accessed and used by other accounts associated with you via Family Sharing or volume purchasing. 

  • License Restrictions. Except as may be expressly permitted by applicable law or expressly authorized by the Application, you shall not:
    (a) use the Application beyond the scope of the license granted under Section 1;
    (b) provide any other person, including any subcontractor, independent contractor, affiliate, or service provider, with access to or use of the Application;
    (c) copy the Application, except as expressly permitted by this license;
    (d) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof;
    (e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
    (f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
    (g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;
    (h) use any robot, spider, or other automatic device, process, or means to access the Application for any purpose, including monitoring or copying any of the material on the Application;
    (i) use any manual process to monitor or copy any of the material on the Application, or for any other purpose not expressly authorized in this Agreement, without Company's prior written consent;
    (j) frame, mirror, or otherwise incorporate the Application or any portion of the Application as part of any other mobile application, website, or service;
    (k) use the Application for purposes of competitive analysis of the Application, the development of a competing software product or service, or any other purpose that is to the Company's commercial disadvantage.
    (l) use the Application in any manner that could disable, overburden, damage, or impair the Application or interfere with any other party's use of the Application; or
    (m) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.

    All rights granted to you under this Agreement (including your use of the Application) will terminate immediately in the event that you are in breach of any of the terms or do anything with the Application that is not expressly permitted by this Agreement.

    You agree not to do any of the following actions while using the Application:
    (a) transmit any User Content that Company considers to be disruptive, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, sexually, ethnically or otherwise objectionable;
    (b) impersonate any person or entity, including but not limited to Company;
    (c) disrupt normal Application functionality, or otherwise act in a manner that negatively affects other participants and/or the overall Application experience;
    (d) intentionally or unintentionally violate any applicable law, regulation or treaty while using or accessing the Application; or
    (e) invade the privacy or violate or infringe any right of any person or entity, including, without limitation, any intellectual property right.

  • Payments and Cancellation
    (a) The Application is offered as a paid service by paying the fees plus applicable taxes via the Apple App Store or Google Play Store (each an “Application Marketplace”) pursuant to the Plan you selected for to Access all of NoteNerd: Voice during registration for your access to the Application (each a “Paid Access”).
    (b) Tax rates are calculated based on the information you provide and the applicable rate at the time of your Paid Access.
    (c) Your purchase of a Paid Access through an Application Marketplace may be subject to separate terms and conditions with such Application Marketplace that apply to your use of the Application in addition to this Agreement.  Please contact the Application Marketplace regarding any refunds or to manage your Paid Access.
    (d) Except for refunds pursuant to the terms and conditions of the Application Marketplace through which you purchased your Paid Access as referenced in Section 3(c) above, your payment to Company or the third party is non-refundable after time of payment.

  • Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.

  • Collection and Use of Your Information. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality.  All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

  • Support and Updates. Support for the Application can be found at https://www.smashingmetronomes.com/support. Apple nor Google provide any maintenance or support for the Application. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
    (a) the Application will automatically download and install all available Updates; or
    (b) you may receive notice of or be prompted to download and install available Updates.
    You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.

  • Additional Licenses.
    (a) Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
    (b) Open Source Software. The Application may include certain open source components that are subject to open source licenses (“Open Source Software”), in which case, the embedded Open Source Software is owned by a third party. The Open Source Software is not subject to the terms and conditions of this Agreement. Instead, each item of Open Source Software is licensed under its applicable license terms which accompanies such Open Source Software. Nothing in this Agreement limits your rights under, nor grants you rights that supersede, the terms and conditions of any applicable license terms for the Open Source Software. Any fees charged by the Company in connection with the Application do not apply to the Open Source Software for which fees may not be charged under the applicable license terms. The terms and conditions of the applicable license for the Open Source Software are available in the Application under the “About” tab within “Settings.”

  • Term and Termination.
    (a) The term of Agreement commences when you acknowledge your acceptance and will continue in effect until terminated by you or Company as set forth in this Section 8.
    (b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.
    (c) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion.  In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
    (d) Upon termination:
        (i) all rights granted to you under this Agreement will also terminate; and
        (ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.
    (e) Termination will not limit any of Company's rights or remedies at law or in equity.

  • Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. FOR ANY SUCH WARRANTY NOT PERMITTED TO BE EXCLUDED, AND THEREAFTER BREACHED BY THE COMPANY, IF YOU ACCESS THE APPLICATION VIA APPLE, YOU MAY NOTIFY APPLE AND APPLE WILL REFUND THE PURCHASE PRICE FOR THE APPLICATION AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPLE WILL HAVE NO OTHER WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE APPLICATION.  ALL OTHER LOSSES WILL BE COMPANY’S RESPONSIBILITY. 

  • Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
    (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
    (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
    THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
    NOTWITHSTANDING THE FOREGOING, IF YOU ACCESS THE APPLICATION VIA APPLE, THE COMPANY, NOT APPLE, IS RESPONSIBLE FOR ADDRESSING CLAIMS MADE 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, including in connection with THE Application’s use, IF ANY, of the HealthKit and HomeKit frameworks.

  • Indemnification; Infringement.
    (a) You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.
    (b) If you access the Application via Apple, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.

  • Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

  • Governing Law. This Agreement is governed by and construedconstructed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of North Carolina in each case located in Wake County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

  • Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

  • Notices. Company is located at 4030 Wake Forest Road, STE 349
    Raleigh, NC 27609, and may be contacted at support@smashingmetronomes.com if you have any questions, complaints, or claims with respect to the Application that are not addressed by Company’s provided support.

  • Third Party Beneficiary. If you access the Application via Apple, you and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.

  • Entire Agreement. This Agreement, the Terms of Use, and our Privacy Policy constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application. 

  • No Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.