Napster End User Licence Agreement (Canada)
1. GRANT OF LICENCE
Napster hereby grants to you a limited, non-exclusive licence to use the Application solely for personal, non-commercial use, on devices under your ownership and control, solely in Canada and other countries in which Napster has commercially launched and subject to the following terms:
You may not: (i) frame or link to the Application except as expressly permitted in writing by Napster; (ii) permit other individuals to use the Application; (iii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), tamper with, or create derivative works based upon the Application, including the Content, or any portion thereof (including without limitation any watermarks, security components and digital rights management); (iv) copy the Application or any portion thereof; (v) sell, rent, lease, transfer, distribute, broadcast, display or otherwise assign any rights to the Application to any third party; (vi) remove any proprietary notices or labels on the Application; (vii) use the Application in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (viii) use the Application for any commercial or illegal purpose; (ix) use the Application for other than your personal, non-commercial purposes, including without limitation the excessive and/or repeated playing of content (for the apparent purpose increasing royalties paid or ratings as applied to such content); (x) use the Application to invade the privacy of, or obtain personal information about, any Application account holder or user, or to obtain a list of Application account holders or users; (xi) copy, modify, erase or damage any information contained on computer servers used or controlled by Napster or any third party used in connection with the Application or the services provided through the Application; (xii) use the Application to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; or use any data mining, robots, or similar data gathering and or extraction tools in connection with the Application; (xiii) use the Application to post or transmit any unsolicited advertising or promotional materials; (xiv) access or use any password protected, secure or non-public areas of the Application except as specifically authorized in writing by Napster (unauthorized individuals attempting to access these areas of the Application may be subject to prosecution); (xv) impersonate or misrepresent your affiliation with any person or entity; (xvi) use any automated means to access or use the Application (including scripts, "bots," spiders, scrapers, crawlers or similar software); or (xvii) modify, translate, reverse engineer, decompile, reproduce, disassemble, or otherwise gain access to or attempt to gain access to any private key or "dev key" (as that term is generally understood within the software industry) associated with the Application, the Content or the Services, or to use or attempt to use any private key or "dev key" in a manner in violation of this Agreement or the applicable Napster service Terms and Conditions.
Napster uses monitoring procedures designed to prevent individuals from unfairly influencing charts or Napster’s accounting of plays through the Application and related Napster Services. Napster reserves the right to remove any identified "gaming" plays on the Application or related Services both for royalty accounting and charting purposes.
Violation of any of the foregoing restrictions may result in the termination of your account. Napster reserves any and all rights or remedies that may be available in the event of your breach of this Agreement. In the event that you breach this Agreement, and you are (or are acting for the benefit of) a provider of content that appears within the Application, such breach may also result in the removal of such content from the Application and the withholding of royalties related to such content.
Other than as specifically permitted during a free trial period, you may not use any subscription-based features of the Application unless you have paid the applicable subscription fee and agreed to the terms of the Napster Service Terms and Conditions. Napster is not obligated to provide any such free trial period.
You acknowledge that Napster may issue upgraded or modified versions of the Application from time to time, and may automatically electronically upgrade or modify the version of the Application that you are using on your computer. You consent to such automatic upgrading or modification, and agree that this Agreement (as amended from time to time) will govern all such versions.
The Application will operate only on those hardware and software platforms specified in the Application documentation. It is your responsibility to ensure that you have the appropriate software, hardware and Internet connection to operate the then-current version of the Application. Napster reserves the right to cease supporting any hardware or software platform at any time, with or without notice.
Napster, in its sole discretion, may modify the Application at any time without notice and may discontinue any Napster website at any time without notice.
3. TITLE TO INTELLECTUAL PROPERTY
You may not use the Application or the Software for any illegal purpose. Napster retains all title and ownership rights in and to the intellectual property. Except as expressly stated in this Agreement, Napster does not grant any express or implied right or licence to you under any patent, copyright, trademark, or trade secret rights of Napster.
4. TITLE TO CONTENT SERVED THROUGH THE APPLICATION
The Content served by Napster or third parties directly through the Application is the property of Napster, its licensors, its partners, and/or its advertisers. Title, ownership rights and intellectual property rights in and to such Content is the property of Napster or third parties and is protected by applicable copyright and other law. Other than as expressly provided herein, this Agreement gives you no express or implied licence to the Content, including without limitation, any right to use, sell, rent, sublicence, copy, distribute, broadcast, modify, perform, create derivative works of or publicly display any Content.
Napster complies with copyright law and expects its users to do the same. You may not use the Application to help you infringe the copyrights of any third party. Any unauthorized use, including without limitation, copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights and a violation of the law. You agree that you shall only use the Application in a manner that does not violate any third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Application, including, but not limited to, applicable restrictions concerning copyrights and other intellectual property rights. In the event of any third party claim that your use of the Application infringes any third party's intellectual property rights, you will be solely responsible for the investigation, defence, settlement and discharge of any such claim.
5. LINKED ENTITIES
The Application and service may contain links to various third party web sites, advertisements and other resources ("Linked Entities"). These Linked Entities (other than web properties owned or operated by Napster such as www.napster.ca or www.rhapsody.com) are not under the control of Napster and Napster is not responsible or liable for the content, communications or materials of any Linked Entities. The inclusion of any link does not imply endorsement by Napster of the Linked Entity or any association with its operators. You are responsible for adhering to the applicable terms of service for any Linked Entity. You are solely responsible and liable for any interactions you may have with such entities, advertisers, their sponsors and other third parties.
You agree to provide true, accurate, current and complete information about yourself as prompted by the registration process (such information being the "Account Information"). You agree to update your Account Information in order to keep such information current. You are solely and entirely responsible for maintaining the confidentiality of your password and user name. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account.
7. BETA RELEASE OR PRE-RELEASE VERSIONS
In the event that the Software is a beta release or pre-release version, the terms of this Section shall apply. Your licence to use the Software expires 120 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software we intend to distribute. While we intend to distribute a commercial release of the Software, we reserve the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the licence expires.
8. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NAPSTER, ITS PARENT COMPANY OR COMPANIES, ITS LICENSORS, ITS INVESTORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, THE WIRELESS CARRIERS OVER WHOSE NETWORK THE APPLICATION IS PROVIDED, AND ITS RESEPECTIVE AFFILIATES AND SUBSCRIBERS, AND ALL DEVICE MANUFACTURERS, ON WHICH THE APPLICATION MAY BE USED, (THE "NAPSTER ENTITIES") DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NONINFRINGEMENT. USE OF THE APPLICATION IS AT YOUR OWN RISK. THE NAPSTER ENTITIES MAKE NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, OR ERROR FREE; NOR DO THE NAPSTER ENTITES MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. THE NAPSTER ENTITIES MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
9. LIMITATION OF LIABILITY
ANY AND ALL RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE APPLICATION REMAINS WITH YOU. IN NO EVENT SHALL THE NAPSTER ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES, INCLUDING ANY DEVICE MANUFACTURERS OR TELECOMMUNICATION SERVICE PROVIDERS, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SALE, DISTRIBUTION, PERFORMANCE OR NON-PERFORMANCE, USE OF, OR INABILITY TO USE THE APPLICATION OR ANY PART THEREOF, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME PROVINCES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE NAPSTER ENTITIES BE LIABLE FOR ANY CLAIMS (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR BREACH OF CONTRACT, BREACH OF WARRANTY, GUARANTEE OR CONDITION, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT) OR DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE APPLICATION IN THE PAST TWELVE (12) MONTHS OR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES.
THE OWNERS AND LICENSORS OF THE CONTENT, SAMSUNG, APPLE AND APPLE'S SUBSIDIARIES, AND ANY DEVICE MANUFACTURERS OR TELECOMMUNICATION SERVICE PROVIDERS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT, AND SHALL HAVE THE RIGHT TO ENFORCE THIS AGREEMENT AGAINST YOU.
10. USER SUPPLIED MATERIALS
All information, advice, files, links, communications or other materials posted by you to or through the Application ("User-Supplied Materials") shall be your responsibility. You agree not to post or transmit any User-Supplied Materials that infringe a third party's rights, including without limitation any privacy, publicity or intellectual property rights, or that are unlawful, untrue harassing, libelous, defamatory, abusive, tortious, threatening, harmful (including but not limited to viruses, worms or similar software) or that is otherwise objectionable. You grant, or warrant that the owner of such User-Supplied Materials has expressly granted Napster, the royalty-free, perpetual, irrevocable, fully sub-licensable, non-exclusive, worldwide right and licence to use, reproduce, display, modify, transmit, distribute, perform, display and delete such User-Supplied Materials (in whole or in part) worldwide and or/ to incorporate such User-Supplied Materials in other works in any form, media or technology now known or later developed. User-Supplied materials are public and not private communications.
11. USER-SUPPLIED MATERIALS AND MONITORING
Napster shall have the right, but not the responsibility, to monitor and/or remove User-Supplied Materials deemed harmful or offensive in Napster’s sole discretion, or that otherwise violate this Agreement or any rules that Napster may institute from time to time. Napster shall have no liability for the failure to receive or for the removal of any User-Supplied Materials. Any opinions, advice, statements, services, offers or other information or content expressed or made available by third parties, are those of the respective author(s) or distributor(s) and not of Napster. Napster neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on or in connection with the Application by anyone other than authorized Napster employees acting in their official capacities.
You agree to indemnify and hold Napster and its parents, members, subsidiaries, affiliates, service providers, syndicators, distributors, licensors, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this Agreement, or your violation of any law, regulation or third-party right.
This Agreement (and your licence) shall terminate automatically and immediately if you fail to comply with any of the limitations described in this Agreement. No notice shall be required from Napster to effectuate such termination. In addition, Napster reserve the right to terminate this Agreement and discontinue your access to the Application at any time for any reason, and with or without notice. Upon termination of this Agreement for any reason you must immediately destroy all copies of the Application.
14. CUSTOMER SERVICE
If you have any questions or concerns about your account, please contact Customer Service or via mail to:
Rhapsody International Inc.
Attn: Customer Service
701 Fifth Avenue, Suite 3100
Seattle, WA 98104
Your phone manufacturer, such as Microsoft or Apple, or your network operator shall not provide support services for the Application.
Napster may modify this Agreement at any time in its sole discretion. In the event of a material change to this Agreement we will use reasonable efforts to notify you by sending notice to the email address that you have provided to us. If any modification is unacceptable to you, you agree that your only recourse is to immediately terminate your use of the Application and destroy any copies of the Software in your possession. Your continued use of the Application following our release of a revised End User Licence Agreement on the Application will constitute your binding acceptance of the change. YOUR ACCEPTANCE OF THIS AGREEMENT INDICATES THAT YOU GIVE CONSENT TO NAPSTER TO E-MAIL YOU WITH NOTICES CONCERNING MATERIAL CHANGES IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR THE SERVICES TO WHICH YOU HAVE SUBSCRIBED. YOU MAY NOT OPT OUT OF ANY ANNOUNCEMENTS AND MESSAGES RELATED TO THE NAPSTER END USER LICENSING AGREEMENT AND YOUR OBLIGATIONS THEREUNDER.
16. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS
The Application is provided with restricted rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer of Application is RealNetworks Digital Music of California, Inc. and/or Rhapsody International Inc., each with an address at 701 Fifth Avenue, suite 3100, Seattle, WA 98104. You acknowledge that none of the Application may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Serbia (except Kosovo), Sudan, Syria, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Application you are agreeing to the foregoing and are representing and warranting that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Washington, United States of America, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state and federal courts sitting in Seattle, in the State of Washington. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either Napster or you employ any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
No delay or failure to take action under this Agreement shall constitute any waiver by Napster of any provision of this Agreement. This Agreement (including all documents expressly incorporated by reference) constitutes the complete and exclusive agreement between Napster and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein. If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void.
19. GRACENOTE® END USER LICENCE AGREEMENT
This application or device contains software from Gracenote, Inc. of Emeryville, California ("Gracenote"). The software from Gracenote (the "Gracenote Software") enables this application to perform disc and/or file identification and obtain music-related information, including name, artist, track, and title information ("Gracenote Data") from online servers or embedded databases (collectively, "Gracenote Servers") and to perform other functions. You may use Gracenote Data only by means of the intended End-User functions of this application or device.
This application or device may contain content belonging to Gracenote's providers. If so, all of the restrictions set forth herein with respect to Gracenote Data shall also apply to such content and such content providers shall be entitled to all of the benefits and protections set forth herein that are available to Gracenote.
You agree that you will use Gracenote Data, the Gracenote Software, and Gracenote Servers for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote Software or any Gracenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE SOFTWARE, OR GRACENOTE SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN.
You agree that your non-exclusive licence to use the Gracenote Data, the Gracenote Software, and Gracenote Servers will terminate if you violate these restrictions. If your licence terminates, you agree to cease any and all use of the Gracenote Data, the Gracenote Software, and Gracenote Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote Software, and the Gracenote Servers, including all ownership rights. Under no circumstances will Gracenote become liable for any payment to you for any information that you provide. You agree that Gracenote, Inc. may enforce its rights under this Agreement against you directly in its own name.
The Gracenote Software and each item of Gracenote Data are licenced to you "AS IS." Gracenote makes no representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Gracenote Servers. Gracenote reserves the right to delete data from the Gracenote Servers or to change data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote Software or Gracenote Servers are error-free, virus-free or that functioning of Gracenote Software or Gracenote Servers will be uninterrupted. Gracenote is not obligated to provide you with new enhanced or additional data types or categories that Gracenote may provide in the future and is free to discontinue its services at any time.
GRACENOTE DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. GRACENOTE DOES NOT WARRANT THE RESULTS THAT WILL BE OBTAINED BY YOUR USE OF THE GRACENOTE SOFTWARE OR ANY GRACENOTE SERVER. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES.
© 2011. Gracenote, Inc. All Rights Reserved.
Certain features or services provided by Napster may be covered by U.S. Patents including U.S. Patent No. 6,330,592.
NOTE: Rhapsody® is a trademark of Rhapsody International Inc.
NOTE: Napster® is a trademark of Rhapsody International Inc.
Last modified: October 2015.