1.1 Welcome to the Tim Topham website located at www.members.topmusic.co (“Site”).
1.2 The Site is owned and operated by Top Music Education Pty Ltd (ACN 614 368 099) (“TT” or “us” or “we”).
1.3 Please read these Terms & Conditions carefully. By accessing or using the Site you become a user of the Site (“User” or “you”). As a User of the Site you agree that you have read and understood these Terms & Conditions and that you agree to be bound by them. These Terms & Conditions form a binding agreement between you and us (“Agreement”).
1.4 TT reserves the right to alter, modify, add to or change in any way, any provision of these Terms & Conditions and may, in its absolute discretion, limit or expand the services available via the Site without giving prior notice to the Users. It is the User’s responsibility to check these Terms & Conditions when they use the Site.
2.1 The term of this Agreement shall commence on the date that the User first accesses or starts using the Site and shall continue until terminated by either party in accordance with Clause 15 (“Term”).
3. Proprietary Rights in the Site
3.1 All materials on the Site (excluding User Materials as defined Clause 5 below) including, but not limited to, underlying software, code, design, text, graphics, video, other files (“TT Content”) is the property of TT or is licensed to TT. All rights are reserved. TT Content shall not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written consent of TT.
3.2 All Trade Marks, logos, trade dress and service marks on the Site are either Trade Marks or registered Trade Marks of TT and shall not be copied, imitated, or used, in whole or in part, without the prior written consent of TT.
4. Membership of TopMusicPro
4.1 The Site contains a ‘members only’ section called TopMusicPro which provides Users with access to training materials, resources, community forums and special offers (“TopMusicPro”).
4.2 In order to access TopMusicPro the User must first register as a member by completing the membership joining process and creating a user account (“User Account”) and then the User must pay the Membership Fees as set out in Clause 6 below.
4.3 Each User is solely responsible for maintaining the confidentiality of their User Account and password and for all activities that occur under their User Account.
4.4 The User must notify TT immediately if they believe their User Account password has been compromised. TT shall not be liable for any loss or damage that the User incurs as a result of a security breach of their User Account. The User may be liable for loss or damage that TT incurs as a result of such security breaches found to have resulted from any act or omission of the User.
4.5 TT in its sole discretion reserves the right to make modifications to the features included in TopMusicPro membership at any time. Any such modifications shall be notified to the User at the time the change is implemented.
4.6 As part of the membership registration process each User creates a user profile that is publicly viewable by other Users (“Profile”). The Profile includes details such as first and last name, user name and image. Each User is solely responsible for activity and information on their Profile.
4.7 The User accepts and agrees that they are solely responsible for their progress and any results from their use of the Site. The User acknowledges and agrees that there are no representations made by TT that the User will achieve specific results from their use of any information available via the Site, including but not limited to the TT Content or User Materials (defined below).
5. User Materials
5.1 Users may upload or ‘post’ content onto the Site and/or exchange certain content via the Site, which may include but is not limited to text, images and third party materials (“User Materials”).
5.2 The User warrants that all User Materials that the User uploads and/or ‘posts’ to the Site do not infringe or violate any third party’s copyrights, trademarks, or other intellectual property or proprietary rights.
5.3 The User agrees to comply with the TT Community Guidelines.
5.4 The User acknowledges that TT does not monitor whether Users are complying with local and/or applicable laws or complying with third party rights in so far as their User Materials are concerned and TT is in no way responsible for protecting the copyright, licenses or any other rights of any User or third party in so far as User Materials are concerned.
5.5 The User grants TT a worldwide, royalty-free and compensation-free, non-exclusive perpetual license(s) to use and publicly display the User’s User Materials on the Site or in connection with the Site, or the operation of the Site and in connection with the promotion and operation of TT’s business (“License”). TT does not claim any rights to User Materials other than as set out in this Clause 5.
5.6 The User acknowledges that any User Materials they upload most to the Site can be freely accessed and used by other Users.
5.7 The User agrees not to use the Site to upload, exchange, post, email, transmit or otherwise make available any content that:
(a) is abusive, obscene, vulgar, slanderous, hateful, threatening, pornographic or any material that may violate any domestic or international laws;
(b) infringes upon the rights of any third party (proprietary rights or otherwise), impersonates any person, User or entity, or otherwise misrepresent themselves or their affiliation with any person or entity;
(c) is unsolicited or unauthorised advertising, promotional materials, junk mail, spam and the like;
(d) contains software viruses or any other malicious computer code, files or programs designed to interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(e) has the potential to bring the reputation of TT into disrepute; or
(f) is intended to intimidate or harass another User.
5.8 TT reserves the right without prior notice to remove User Materials from the Site in the event that it deems to fall into any of categories as described in Clause 5.7 above and may suspend or otherwise terminate that User’s TopMusicPro membership at its sole discretion.
5.9 TT does not endorse the User Materials, or any opinion, recommendation, or advice expressed therein, and TT expressly disclaims any and all liability in connection with all User Materials.
5.10 TT has access to and may moderate all Site forums and reserves the right to remove any User Materials, postings or comments at its sole discretion.
6. Fees & Payment
6.1 The User will be required to pay the prescribed membership fees before they can access TopMusicPro (“Membership Fees”).
6.2 All Membership Fees are quoted in US dollars and are payable via Pay Pal or credit card.
6.3 Membership Fees can be paid monthly or annually. If the User elects to pay the Membership Fees on a month by month basis, they will be required to pay one month in advance and if they elect to pay the annual fees, they will pay for one year in advance.
6.4 If the User elects to make monthly or annual payments, the User shall enter into a direct debit arrangement with TT, whereby the User will automatically be charged the monthly User Fee a month after they register and thereafter at the end of each month during the Term.
6.5 Where the User is on a month to month payment arrangement, the User may terminate this Agreement in accordance with Clause 15.5 below and may cancel the direct debit arrangement.
6.6 If the User has elected to pay the Membership Fees on an annual basis, the User acknowledges that (to the extent permitted by law) such payment shall be non-refundable other than in accordance with Clause 6.7. In the month leading up to the end of the annual period, TT will notify the User that his/her payment is due, and unless cancelled in writing by the User, TT may deduct a further annual fee from the User on the next annual due date.
6.7 To the extent permitted by law all Membership Fees are non-refundable, however TT offers a 30 day money back guarantee for any User who is not happy with their TopMusicPro membership. If a User wishes to request a refund in accordance with this Clause 6.7 they must do so within 30 days of first becoming a member of TopMusicPro by emailing firstname.lastname@example.org.
7. No Warranties
7.1 The Site is provided on an “as is” basis and to the fullest extent permitted by law, without representations or warranties of any kind to the User, whether express or implied, including without limitation as to the quality and/or fitness of the Site for a particular use or purpose, accessibility or warranties that access or use of the Site will be uninterrupted or error-free, and that the Site will be secure or free of viruses or other harmful material or elements, or that the TT Content or User Materials will be correct, accurate, timely or complete.
7.2 Where TT is found to be liable for breach of any warranty or condition implied by statute and which cannot be lawfully excluded, TT’s liability is limited (to the extent permitted by law) to the following, at TT’s option:
(a) in the case of goods supplied or offered by TT:
(i) to the supply of those goods again; or
(ii) to the payment of the cost of having those goods supplied again; or
(b) in the case of services supplied or offered by TT:
(i) to the supply of the services again; or
(ii) to the payment of the cost of having services supplied again.
7.3 The TT Content or User Materials may include technical inaccuracies or typographical or other types of errors. TT has the right to make changes, modifications and updates to any Content contained on the Site without prior notice.
9. Links to External Websites
9.1 Through this Site Users are able to link to other websites which are not under the control of TT. TT has no control over the nature, content and availability of those external websites. Unless otherwise stated, the inclusion of any links on the Site does not imply a recommendation or endorsement of the goods and services, or opinions contained within such websites.
9.2 Some links provided on the Site are to our affiliates. Where we have an affiliate relationship that results in some benefit to us, we will disclose that to you on the Site.
10.1 To the fullest extent permitted by law, TT and its related bodies corporate, its directors, and employees expressly disclaim all warranties, express or implied, of any kind with respect to the Site.
10.2 TT is in no way responsible and accepts no liability for any loss (including but not limited to loss of revenue or anticipated profits, loss of goodwill, loss of business) in connection with:
(a) the conduct and behaviour of any User, whether on the Site or otherwise;
(b) any incorrect or inaccurate content on the Site;
(c) any User Materials uploaded or posted on the Site or in connection with the Site;
(d) the consequences of any malfunction of any equipment or programming associated with the operation of the Site;
(e) any information available on or through the Site or on or through any third party website to which is linked to from the Site; or
(f) TT’s negligence or the negligence of any of its related bodies corporate, directors, officers, shareholders, employees, contractors or agents.
10.3 The User agrees that the opinions of TT’s employees and contractors, and/or other Users which are expressed on the Site are not the opinions of TT, and the User agrees that TT will not be liable for any loss or injury or any direct, indirect, consequential, special, punitive, or other damages caused by or as a result of those opinions.
10.4 There may be times when the Site is temporarily unavailable to the User due to maintenance or any to other reason beyond the control of TT. In the event that the Site is unavailable TT is in no way responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft, destruction, unauthorised access to, or alteration of User communications or contributions.
10.5 Under no circumstances will TT be responsible for any loss or damage, including, but not limited to, personal injury or death, resulting from the User’s use of the Site, any User Material in connection with the Site, or any interactions between Users of the Site, whether occurring on the Site or otherwise.
11. User Warranties
11.1 THE USER WARRANTS THE FOLLOWING:
(a) THAT THEY ARE OVER THE AGE OF THIRTEEN (13) YEARS OLD AND IN THE EVENT THAT THEY ARE UNDER THE AGE OF THIRTEEN (13) YEARS OLD THAT THEY HAVE THEIR PARENT/GUARDIAN’S CONSENT TO USE THE SITE;
(b) THAT TT SHALL NOT BE IN ANY WAY LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR LOSS OF MONEY, GOODWILL, REPUTATION OR DATA ARISING FROM THE USER’S USE OF THE SITE; AND
(c) THAT THE USER WILL NOT HOLD TT RESPONSIBLE FOR OTHER USERS’ ACTS OR OMISSIONS, INCLUDING ANYTHING IN CONNECTION WITH THE USER MATERIALS OR TT MATERIALS. THE USER AGREES THAT TT HAS NO CONTROL OVER, AND DOES NOT GUARANTEE, AND DISCLAIMS ANY AND ALL LIABILITY FOR THE QUALITY OF THE COMMUNICATIONS, USER MATERIALS, TT MATERIALS, AND THE ACCURACY OF INFORMATION CONTAINED ON THE SITE.
12.1 The User indemnifies TT, and holds TT, its officers, directors, employees, contractors, affiliates and licensors harmless from and against:
(a) any and all claims, demands and damages (including but not limited to legal fees) made by a third party due to or arising from or related to the User’s violation of these Terms & Conditions, or the User’s violation of any laws, regulations or third party rights;
(b) liability for or in respect of any physical injury (including death) to the User or any other person;
(c) damage to property; and/or
(d) other liability, damage or loss;
insofar as the injury, damage or other liability, damage or loss is attributable to the User’s negligence, breach of these Terms & Conditions, or unlawful or wilful act or omission in connection with these Terms & Conditions or use of the Site.
12.2 Should TT in its sole discretion, determine that any User has breached these Terms & Conditions, then nothing herein shall prevent or in any way restrict its right to pursue any of its legal and/or other remedies, including, without limitation, court action.
13.1 The User acknowledges that this Agreement is personal to it and cannot be assigned, transferred, sold or otherwise disposed of without the prior written consent of TT. TT reserves its right to assign this Agreement in whole or in part at any time.
14. Copyright and the DMCA
14.1 Pursuant to Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c), a copyright owner or their agent may submit a takedown notice to us via our DMCA Agent listed below. As an internet service provider, we are entitled to claim immunity from said infringement claims pursuant to the “safe harbor” provisions of the DMCA. To submit a good faith infringement claim to us, you must submit a notice to us that sets forth the following information:
Notice of Infringement – Claim
1. A physical or electronic signature of the copyright owner (or someone authorized to act on behalf of the owner);
2. Identification of the copyrighted work claimed to have been infringed;
3. Identification of the infringing material to be removed, and information reasonably sufficient to permit the service provider to locate the material. [Please submit the URL of the page in question to assist us in identifying the allegedly offending work];
4. Information reasonably sufficient to permit the service provider to contact the complaining party including your name, physical address, email address, phone number and fax number;
5. A statement that the complaining party has a good-faith belief that the use of the material is unauthorized by the copyright agent; and
6. A statement that the information in the notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.
14.2 Title 17 USC §512(f) provides civil damage penalties, including costs and attorney fees, against any person who knowingly and materially misrepresents certain information in a notification of infringement under 17 USC §512(c)(3).
14.3 Please note that we may share the identity and information in any copyright infringement claim we receive with the alleged infringer. In submitting a claim, you understand and accept that your identity and claim may be communicated to the alleged infringer.
14.4 Send all takedown notices to our DMCA Agent listed below. Please send by email for prompt attention.
Top Music Education PTY LTD
401 Docklands Drive, Suite 1319
Docklands VICTORIA, 3008
Phone: +1 (831) 295-8573
Our Business Information:
Top Music Education PTY LTD
401 Docklands Drive, Suite 1319
Docklands VICTORIA, 3008
14.5 Counter Notification – Restoration of Material. If you have received a notice of material being takedown because of a copyright infringement claim, you may provide us with a counter-notification in an effort to have the material in question restored to the site. Said notification must be given in writing to our DMCA Agent and must contain substantially the following elements pursuant to 17 USC Section 512(g)(3):
1. Your physical or electronic signature.
2. A description of the material that has been taken down and the original location of the material before it was taken down.
3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which the address is located (or if you are outside of the United States, that you consent to jurisdiction of any judicial district in which the service provider may be found), and that you will accept service of process from the person or company who provided the original infringement notification.
5. Email your counter notice to our DMCA Agent (listed above).
14.6 Repeat Infringer Policy. We take copyright infringement very seriously. Pursuant to the repeat infringer policy requirements of the Digital Millennium Copyright Act, we maintain a list of DMCA notices from copyright holders and make a good faith effort to identify any repeat infringers. Those that violate our internal repeat infringer policy will have their accounts terminated.
15.1 Without limiting the generality of any other clause contained in this Agreement, TT may terminate this Agreement immediately by notice in writing if the User is in breach of a material term of this Agreement including where there is any outstanding Membership Fees payable to TT.
15.2 Termination by TT pursuant to this Clause 15.1, shall not relieve the User of their obligation to pay all amounts due and payable up to the date of termination nor shall it effect the provisions of these Terms & Conditions which are intended to survive termination.
15.3 If notice of termination is given to the User, TT may, in addition to terminating the Agreement:
(a) disable the User Account in order to prevent the User accessing TopMusicPro;
(b) retain any monies paid to TT by the User;
(c) be regarded as discharged from any further obligations under this Agreement; and
(d) pursue any additional or alternative remedies provided by law.
15.4 The User acknowledges that their User Materials may remain on the Site even after termination of this Agreement.
15.5 The User may terminate this Agreement at any time by giving thirty (30) days written notice to TT.
15.6 To the extent permitted by law, in the event that the User terminates this Agreement they will not be entitled to a refund of any TopMusicPro Membership Fees, however if the User is on a monthly payment plan for Membership Fees, TT shall not be entitled to be paid any further Membership Fees.
16. Governing Law and Jurisdiction
16.1 These Terms & Conditions and the access and use of the Site shall be governed by and construed in accordance with the laws of Victoria, Australia. By accessing and using the Website, the Users accepts that any dispute under these Terms & Conditions or arising out of access and/or use of the Site shall be subject to the exclusive jurisdiction of the Victorian Courts in Australia and by accessing and/or using the Site, the User hereby submits to the jurisdiction of such courts for such purposes.
16.2 In the event of any dispute regarding this Agreement, the parties agree to attempt in good faith to resolve such dispute by mediation undertaken in Victoria, Australia.
16.3 Users are solely responsible for compliance with any applicable laws of the country from which they access this Site.
16.4 This Agreement is the entire agreement between TT and the User and shall supersede and/or override any previous oral or written agreements between the User and TT.
LAST UPDATED: March 2022