SMS Terms of Use

Effective date: December 17, 2018

1. BINDING EFFECT. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SAN DIEGO YOUTH SYMPHONY (“SDYS”) REGARDING YOUR USE OF THE WEBSITE HTTP://MYINFO.SDYS.ORG/ (THE “SITE”) AND THE FEATURES AND FUNCTIONALITY PROVIDED IN CONNECTION WITH THE SITE (THE “SERVICE”). PLEASE READ THIS DOCUMENT CAREFULLY BEFORE CONTINUING TO REGISTER. BY CLICKING ON THE “YES, I ACCEPT” BUTTON, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “YES, I ACCEPT” BUTTON AND DISCONTINUE YOUR REGISTRATION.

YOU AGREE THAT BY CREATING AN ADULT ACCOUNT, PROVIDING YOUR HOUSEHOLD ACCOUNT, REGISTERING YOUR STUDENTS, ACCESSING, BROWSING OR USING THE SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF USE. YOU HEREBY REPRESENT THAT (i) YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT; AND (ii) WHEN YOU REGISTER A STUDENT TON THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN RESPECT OF SUCH CHILD’S USE OF THE SERVICES.

2. PRIVACY POLICY. SDYS respects your privacy and permits you to control the treatment of your personal information. A complete statement of SDYS’ current privacy policy can be found by clicking here. SDYS’ privacy policy is expressly incorporated into these Terms of Use by this reference.

3. CREATING ACCOUNT. You are required to create a primary adult account, provide your household information and create one or more student accounts to use all the features of the Site or Service. In order to sign up, you must complete the registration process by providing the complete and accurate information requested on the information collection forms. IF YOU REGISTER, APPROVE THE REGISTRATION OF, OR OTHERWISE ASSUME RESPONSIBILITY FOR ANY CHILD, YOU REPRESENT AND WARRANT THAT YOU ARE SUCH CHILD’S PARENT OR LEGAL GUARDIAN AND YOU AGREE TO BE BOUND BY THE TERMS ON BEHALF OF SUCH CHILD, INCLUDING WITHOUT LIMITATION BEING LIABLE FOR ALL USE OF THE SERVICE BY THE CHILD. You are entirely responsible for maintaining the confidentiality of your password. You may not use the account, username, or password of someone else at any time. You agree to notify SDYS immediately on any unauthorized use of your account, user name, or password. SDYS shall not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge. You may be held liable for any losses incurred by SDYS, its affiliates, officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password.

4. USE OF STUDENT MANAGEMENT SYSTEM. SDYS makes the student management system available to you through the Site for the registration of students, communication regarding their musical learning and progress and exchange of other information regarding SDYS’ programs and services. You agree to use the Site for your personal, educational and noncommercial use only and may not sell, redistribute, or reproduce any content on the Site for any commercial purpose.

5. YOUR INFORMATION. By registering to use the Site, you will be providing us with certain information about your household, including student information and musical background (“Household Information”). You hereby grant SDYS a license to use your Household Information to provide the Service to you. All Household Information is collected subject to our privacy policy. You agree not to provide any Household Information that infringes any intellectual property or other proprietary rights of any party, or, in the sole judgment of SDYS, is objectionable, or which may expose SDYS or its users to any harm or liability of any type. SDYS intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or of any applicable laws.

6. PAYMENTS. SDYS uses a third party contractor, currently Authorize.net, to process your registration payments. Payments for student registration shall be made using a credit card and shall be processed by Authorize.net or any other payment processor engaged by SDYS for this purpose. You hereby authorize Authorize.net or any payment processor engaged by SDYS to charge, to the credit card you provide, all amounts owed as a result of your registering student(s) for music programs using the Site. You assume all responsibility for notifying our payment processor of changes in credit card numbers and/or expiration dates. If your credit card is denied when charged, we may charge and collect from you a "bad account" fee of twenty five ($25.00) dollars for any declined or rejected transaction. Your students may not participate in any music programs until payment for the corresponding registration fees are paid in full. You shall additionally be responsible for and shall immediately pay us, on demand, any payments that are made to us that are subject to a subsequent reversal. Questions regarding charges must be brought to the attention of our billing department within ninety (90) days after the end of the questioned billing period. Charges beyond ninety (90) days old are not subject to review, reversal or refund. YOU REPRESENT AND WARRANT THAT (I) THE CREDIT CARD INFORMATION SUPPLIED TO OUR PROCESSOR DURING REGISTRATION PAYMENT IS TRUE, CORRECT AND COMPLETE AND THAT YOU ARE AUTHORIZED TO PROVIDE AND USE IT, (II) PAYMENTS MADE YOU WILL BE HONORED BY YOUR CREDIT CARD COMPANY, AND (III) YOU SHALL PAY FOR ALL REGISTRATION FEE PAYMENTS INCURRED THROUGH USE OF YOUR LOGIN CREDENTIAL.

7. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing the Site or using the Service, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Service and the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.

8. PROHIBITED USES. SDYS imposes certain restrictions on your permissible use of the Site and the Service. You are prohibited from violating or attempting to violate any security features of the Site or accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access. You are also prohibited from interfering or attempting to interfere with service to any user, host, or network or attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by SDYS in providing the Site or Service. Any violation of system or network security may subject you to civil and/or criminal liability. You further agree not to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity or attempt to use the Service to contact students or otherwise solicit personal information from anyone under the age of 18.

9. COPYRIGHT INFRINGEMENT. SDYS has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site or with the Service. SDYS’ policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want SDYS to delete, edit, or disable the material in question, you must provide SDYS with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SDYS to locate the material; (d) information reasonably sufficient to permit SDYS to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to SDYS’ designated agent at:

San Diego Youth Symphony and Conservatory

1650 El Prado #207A

San Diego, CA 92101, USA

Attn: Copyright Agent

Telephone: 619.233.3232.

Email Address: support@SDYS.org

10. ALLEGED VIOLATIONS. SDYS reserves the right to terminate your use of the Service and/or the Site. To ensure that SDYS provides a high quality experience for you and for other users of the Site and the Service, you agree that SDYS or its representatives may access your account and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the Site or the Service. SDYS does not intend to disclose the existence or occurrence of such an investigation unless required by law, but SDYS reserves the right to terminate your account or your access to the Site immediately, with or without notice to you, and without liability to you, if SDYS believes that you have violated any of the Terms of Use, furnished SDYS with false or misleading information, or interfered with use of the Site or the Service by others.

11. NO WARRANTIES. SDYS HEREBY DISCLAIMS ALL WARRANTIES. SDYS IS MAKING THE SITE AND ALL RESOURCES AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE AND THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SDYS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SERVICE AND THE RESOURCES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. SDYS DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

12. LIMITED LIABILITY. SDYS’ LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SDYS BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, THE SERVICE, OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY SDYS. This limitation shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.

13. THIRD PART SITES. SDYS has no control over, and no liability for any third party websites or materials. SDYS makes no guarantees about the accuracy, currency, content, or quality of the information provided by such sites, and SDYS assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites.

15. GOVERNING LAW. These Terms of Use shall be construed in accordance with and governed by the laws of the State of California, without reference to its rules regarding conflicts of law. With respect to any disputes or claims not subject to arbitration, as set forth below, you hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts in San Diego County, California, USA in all disputes arising out of or related to the use of the Site or Service.

16. ARBITRATION. At SDYS’ or your election, all disputes, claims, or controversies arising out of or relating to the these Terms of Use or the Service that are not resolved by mutual agreement shall be exclusively resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in San Diego, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award you any damages in excess of the limitation on actual compensatory, direct damages set forth in above and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under these Terms of Use, and you hereby irrevocably waive any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

17. SEVERABILITY; WAIVER. If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms of Use shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

18. GENERAL. Nothing contained on the Site should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by SDYS or by any third party. In the event a dispute arises regarding these Terms of Use or the use of this Site, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred, in addition to damages and any other relief to which it is entitled. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Use without the prior written consent of SDYS, but SDYS may assign or transfer these Terms of Use, in whole or in part, without restriction. The section titles in these Terms of Use are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Use or other matters by displaying notices or links to notices generally on the Service.

19. NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at San Diego Youth Symphony and Conservatory

1650 El Prado #207A, San Diego, CA 92101, USA, or by telephone at 619.233.3232.

20. MODIFICATIONS. SDYS may, in its sole discretion and without prior notice, (a) revise these Terms of Use; (b) modify the Site and/or the Service; and (c) discontinue the Site and/or Service at any time. SDYS shall post any revision to these Terms of Use to the Site, and the revision shall be effective immediately on such posting. You agree to review these Terms of Use and other online policies posted on the Site periodically to be aware of any revisions. You agree that, by continuing to use or access the Site following notice of any revision, you shall abide by any such revision.

21. ACKNOWLEDGEMENT. REGISTERING FOR, ACCESSING, BROWSING OR USING THE SERVICE, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM. YOU MUST AGREE TO THESE TERMS OF USE IN ORDER TO SIGN UP AND USE THE SERVICE.