1. ENROLLMENT IN THE SERVICES
In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted the right to stream and/or download content that is available via the applicable Service(s) pursuant to the terms specified during the registration process, and simultaneously have access to our broad range of editorial and contextual information about the content and its creators. You will also be given the option to participate in the Napster Social Network (“NSN”, as defined below), whereby users can collaborate and share listening preferences, playlists and other information from their individual profiles.
In order to access the Napster Service(s), you must complete the registration process, have downloaded the Application (if required), possess the hardware and software required by the Application, and be connected to the Internet.
By subscribing to or accessing the Napster Service, you are representing to us that you are authorized to use the credit card you submit for payment (if any) and that you reside in Canada. If you are a parent or guardian paying on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such other person, any charges associated with that person's use of any of the Services, and that person's compliance with this Agreement. It is your responsibility to protect your credit card from use by such persons. YOU AGREE TO TAKE STEPS AS ARE APPROPRIATE TO ENSURE SUCH COMPLIANCE AND WILL INDEMNIFY AND HOLD NAPSTER AND ITS AFFILIATES AND DISRTRIBUTION AND SYNDICATION PARTNERS HARMLESS FROM ANY BREACH OF THIS AGREEMENT.
If your account includes sub-accounts (such as for a family plan), you are responsible for payment and compliance with this Agreement for all sub-accounts affiliated with your account, regardless of who is actually using the sub-accounts.
As consideration for your rights under this Agreement, you agree that Napster may provide marketing, promotional offers, advertising and other information to you via email, in-app messaging, push notifications on your mobile device, or other means of communication. You may opt out of most forms of communication from Napster, for example through your account or application settings. However you may not opt out of announcements and messages related to the implementation of the Napster policies and your obligations thereunder.
2. TERM, FEES AND PAYMENTS
Applicable fees for Services may include a periodic (e.g., monthly, quarterly or annual) subscription fee based on the particular Service requested, transaction fees, taxes, and additional fees for the purchase of permanent downloads.
(a) Free Trial Period
Napster may offer you a one-time, free trial period or limited preview during which you can try out such Service(s) for free (a "Free Trial"). The length of any such Free Trial, number of tracks you can play during the Free Trial, and the particular Services included may vary from time to time. Napster reserves the right to modify the parameters of your Free Trial at any time, and to determine, in its sole discretion, whether you are eligible for a Free Trial. If you terminate your subscription prior to the expiration of any Free Trial, you will not have any financial obligation with respect to your subscription, and your credit card will not be charged for your use of the Service. However, you will be charged for any Services you choose to access that are not included within the Free Trial. For example, if your Free Trial does not include permanent downloads from the online music store, you will be charged the applicable fee. If your Free Trial is duration based, it will expire at midnight Pacific Time on the last day of the Free Trial, and your initial paid subscription will automatically be activated at 12:01am on the day following the last day of your Free Trial ("Activation Date"). Each user is entitled to one Free Trial per Service. If you subscribe to a tier of Service after you have already received a Free Trial on such tier of Service, your credit card will be billed immediately upon registration. Free Trials are also limited to one per credit card. Should two customers use the same credit card to subscribe to Napster, only the first customer is eligible to receive a Free Trial.
(b) Initial Subscription Payment
By registering for one of the Services, you agree that if you do not cancel your subscription before the expiration of your Free Trial, you will pay the applicable fees for the Service that you select upon registration. If you do not cancel your subscription prior to the expiration of the Free Trial, we will charge your payment method such as your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees will automatically be charged to the payment method (e.g. credit card) you designated as the payment method to be billed for your account.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month, one quarter, etc.). At the time of renewal, your payment method such as your credit card will be charged our then-current fees for the applicable subscription, provided that if the fee for your renewal Service has increased, we will notify you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to elect not to renew.
(d) Your Billing Date
Your payment method (e.g. credit card) will be charged for the renewal term of your Service on your billing date ("Billing Date"), based on the type of subscription (e.g., on a particular date each month for a monthly subscription; on the three-month date for a quarterly subscription; on the anniversary for an annual subscription, etc.). If, however, your Activation Date is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than 31 days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be. If your Service is billed through a mobile carrier, please refer to your payment terms with such mobile carrier to determine the Billing Date.
(e) Early Termination
Some subscriptions are provided and priced based on your commitment to subscribe for a minimum period of time, e.g. six months or twelve months. Such minimum commitment is based on your Billing Date, rather than the first or last day of a calendar month. You acknowledge that, in the event of early termination by you, we may incur costs and/or diminution in the value of the agreement that may be difficult to measure. Therefore, in the event of early termination for any reason (including voluntary termination by you or credit card expiration), the early termination fee stated at the time of registration may be charged to you as Napster's liquidated damages resulting from your early termination.
(f) Subscription Upgrades
If you are a subscriber to a premium tier of the Service that includes on-demand streaming of full-length tracks or certain other premium features, and if you have not logged in to the Service for at least sixty (60) days or two billing cycles, Napster may change your Service tier to "Napster Radio" or another Service tier that does not include access to the on-demand streaming feature or certain other premium features. Generally, such change will include a lower price and a savings to you; in no event will such change result in a higher price. If, after such change, you attempt to access on-demand streaming or any other premium feature available in your original Service tier, you will be provided with a message offering you the opportunity to upgrade back to your original Service tier, at the current subscription price for that Service tier.
If you would like to change the Service(s) to which you subscribe, whether to upgrade to your original Service tier after the change described above, or to make any other change, you may change or upgrade your Service at any time by selecting "Manage My Account" from the "My Account" menu in the Napster Application, and then clicking "Edit" next to "Subscription Status" in your Account Summary. However, you may be required to contact Customer Service for certain changes.
(g) Track Downloads
Some of the Services may include the ability to obtain permanent downloads independent from any subscription Service(s) to which you may subscribe. In some cases, such downloading will incur a per-permanent download fee. If such purchase fees are required, you will be made aware that a cost will be incurred and asked to explicitly accept the charges prior to commencement of downloading. However, if you have explicitly turned on "one click purchasing" (or similar functionality) in your account settings, you will not be asked to accept the charges prior to commencement; with "one click purchasing," your single request to "purchase" is your confirmation of the order.
Regardless of the use of the word "purchase," and except as set forth in the following paragraph, all tracks offered for download are offered for licence, not purchase or sale, and are subject to this Agreement and any other licence terms and conditions applicable to the content, including limitations imposed by the use of any digital rights management technology. All licences to download are personal to the customer. Your request to "purchase" a track by downloading is personal to you, and the track may not be used, sold, rented, transferred, licenced, sublicenced or otherwise provided to any other user. Licences to downloaded tracks include only those rights explicitly stated in the Service (typically, the right to play back for your own personal use from your personal computer, tablet, smartphone, CD player, digital player, or other personal consumer electronic device), and, for the avoidance of doubt, do not include the right to create a derivative work, to modify, to adapt, to make copies other than for your own personal use, or to use it in any commercial manner.
All permanent downloads purchased using the Napster Service, regardless of format, can be downloaded only once. Napster will not replace or allow re-downloading of lost or damaged music files once the initial download is complete. For this reason, Napster recommends that you backup your Napster purchased music to CD or external hard drive for personal use.
Notwithstanding anything to the contrary contained in the second paragraph of this subparagraph 2(g) of this Agreement, certain content downloads offered within the Service(s) are sold (not licenced) to you directly from SBME Digital LLC ("Sony BMG"). Such downloads are delivered to you by us on behalf of Sony BMG, and we are acting as an agent of Sony BMG for such transactions.
(h) Non-Subscription Purchases
Some of the Services may allow you to make individual purchases of content or features offered as part of the Services. For example, you may be able to purchase “credits” that allow access to content within the Services. These purchases are separate and distinct from your subscription, and you may not be required to have a subscription in order to make such purchases, although you will still be required to register for an account with Napster. These purchases may be presented as “in-app purchases,” wherein the purchase is managed and processed not by Napster, but through the app store (such as iTunes or Google Play) where you acquired the Napster app. In the case of in-app purchases, these charges will be made by the applicable app store, not by Napster, and the payment terms of the app store, not these terms, will apply. Napster disclaims any responsibility or liability for the processing of these purchases; if you have any questions or concerns about these purchases, you should contact the applicable app store. Napster will make reasonable efforts, within the parameters offered by the app stores, to make you aware when you are about to incur a non-subscription charge. These purchases do not give you ownership of any content, but rather may be used to unlock certain features in the Services, such as access to content. Credits may also be granted to your account without any purchase on your part, based on your activity within the Services. Purchased credits will be redeemed before granted credits.
(i) No Warranties
WITHOUT LIMITING ANY PROVISION HEREIN, NAPSTER MAKES NO WARRANTY THAT ANY PARTICULAR COMPACT DISC BURNER, PLAYER, COMPUTER, TABLET, SMARTPHONE, OTHER PORTABLE DEVICE, OR OTHER HARDWARE WILL BE COMPATIBLE WITH NAPSTER'S APPLICATION OR THAT ANY COMPACT DISC BURNED USING THE APPLICATION WILL FUNCTION IN ALL COMPACT DISC PLAYERS. IT IS SOLELY YOUR RESPONSIBILITY TO ENSURE THAT YOUR RECORDING AND PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE APPLICATION.
(j) No Refunds
All fees paid and charges made prior to termination as provided herein, including any advance charge or payment for the subscription term during which you terminate your subscription, are nonrefundable. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(k) Methods of Payment
All payments processed by Napster must be made by VISA, MasterCard, American Express or Discover Card, or other payment form explicitly authorized at the time it is submitted. We do not accept cash or cheques. AS BETWEEN YOU AND NAPSTER, YOU, AND NOT NAPSTER, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR SERVICES BILLED TO YOUR PAYMENT METHOD BY A THIRD PARTY WHO HAD ACCESS TO YOUR PAYMENT METHOD (INCLUDING YOUR CREDIT CARD NUMBER), WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU. You agree to pay all fees and charges incurred in connection with your subscription and its password (including any applicable taxes) at the rates in effect when the charges were incurred. If Napster does not receive payment from your payment method issuer or its agent, you agree to pay all amounts due upon demand by Napster. If you elect to sign up to any of the Services through a mobile carrier, you elect to be billed by such mobile carrier for your subscription fee to the Service(s). Payments processed by third parties, such as for in-app purchases are governed by the terms of the applicable app store.
(l) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Service(s).
Prices exclude all provincial and federal taxes unless stated otherwise. Napster collects any applicable taxes at the rate in effect at the time your transaction is completed. If the tax rate changes before the transaction is completed, the new tax rate in effect will apply. Napster cannot accept exemption certificates for purchases made online. Contact customer service if you believe your transaction is exempt from tax.
(n) Transaction Fees
Napster may impose an additional transaction fee based on transactions associated with Services, including a transaction fee applied to your periodic subscription fee, or your purchase of permanent downloads or burns. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction, likely via the order path for a Service, by email notification concerning your Service(s) and applicable fees, through the order path for permanent downloads, or in a similar, explicit manner.
(o) Payment Method Authorization
If you request access to Services for which a fee is charged based on each individual transaction (typically, the purchase of permanent downloads), Napster may seek authorization of your payment method to validate your ability to pay the applicable fees prior to the first purchase. The authorization amount is typically $5, but may vary based on the relevant Services. This is a common and standard practice. This authorization is not a charge. However, this authorization may reduce your available credit by the authorization amount until your bank's next processing cycle.
(p) Modifications to Fees or Billing Terms
NAPSTER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT OR SERVICES PROVIDED BY NAPSTER, UPON EFFECTIVE NOTICE TO YOU AT LEAST 30 DAYS PRIOR TO THE CHANGE, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your subscription by contacting customer service. Your continued use of the Service(s) following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO NAPSTER TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SERVICE(S) YOU USE. IF YOU CHOOSE TO UNSUBSCRIBE TO NAPSTER, YOU WILL NO LONGER BE ABLE TO USE THE APPLICATION OR SERVICE(S).
3. REFER-A-FRIEND PROGRAM
(a) A qualified referral ("Qualified Referral") is triggered when a person ("Referred Customer") on the Napster website ("Site") who has not previously taken a trial via the Site, and who arrives at the Site via your Refer-A-Friend link ("Link") pays for three (3) months of Napster subscription service. Only one Qualified Referral can be earned for each Referred Customer. IF YOUR SUBSCRIPTION IS VIA A PRE-PAID CARD, BILLED THROUGH A WIRELESS SERVICE OR THIRD PARTY, A NO CREDIT CARD (NOCC) TRIAL OR LIMITED LIFETIME FREE (LLF) USER ACCOUNT , YOU ARE NOT ELIGIBLE FOR THE REFER-A-FRIEND PROGRAM OR ANY FREE CREDITS.
(b) For each Qualified Referral you may earn a credit applicable toward the Napster subscription service. Credit has no cash value, is non-refundable and non-transferrable. Trial sign ups cancelled by the Referred Customer prior to the Referred Customer making three (3) months' worth of payment for the Napster subscription service do not qualify as a Qualified Referral.
(c) Bulk email distribution, distribution to strangers, or any other promotion of a Link in a manner that would constitute or appear to constitute spam or unsolicited commercial email under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of the Referring Customer's account and deactivation of the Link.
(e) Napster reserves the right to cancel or modify the Refer-A-Friend Program or this Agreement at any time in its sole discretion. Napster reserves the right to close the account(s) of any Referring Customer and/or Referred Customer, and to request proper payment if either attempts to use the Refer-A-Friend Program in a questionable manner or in breach of the applicable terms and conditions or in violation of any law, statute or regulation.
(f) Limitation of Liability IN NO EVENT SHALL NAPSTER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES RELATED TO THE REFER-A-FRIEND PROGRAM, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NAPSTER’S MAXIMUM AGGREGATE LIABILITY TO THE REFERRING CUSTOMER, THE REFERRED CUSTOMER AND/OR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE LIMITED TO NO MORE THAN THE MONETARY VALUE OF THE SUBSCRIPTION SERVICE EARNED BY THE REFERRER OR REFEREE PARTICIPATING IN THIS PROGRAM WITHIN THE PAST TWELVE (12) MONTHS. THE REFERRING CUSTOMER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).
4. NAPSTER SOCIAL NETWORK
The Napster Service(s) and Application provide you with access to the Napster Social Network feature ("Napster Social Network” or “NSN"). The NSN allows you to discover music by making social connections with other NSN members, including by sharing your playlists and listening preferences, and locating your friends' NSN profiles, including via integration with other third party services such as Gmail and Facebook. By using any of the Napster Services you are automatically a member of the NSN and you understand that other members of the NSN or of the general public may discover your NSN profile, including via integration with third party services that they use.
(a) Customizing Your User Profile
Through the NSN feature, you may customize your profile and create social connections with other users. To customize your profile, you must log in to www.napster.ca.
You may choose whether your NSN profile is public or private through your profile settings. It is your responsibility to be aware of and control the public or private status of your NSN profile. If your profile is public, other members of the NSN and other members of the public may have access to information from your profile, which may include certain listening preferences and actions. If your profile is private, your profile will not be accessible to other members of the NSN or members of the public, and you will not be able to use certain features of the NSN. Should you not choose to make your NSN profile private, the NSN profile will remain public.
(b) Information You Post Within the Napster Social Network
By posting or displaying any User Content via the NSN, you represent that you are the owner of such User Content and that posting such information or User Content does not violate any privacy, publicity, or intellectual property rights of any party. IN NO EVENT DOES NAPSTER ASSUME ANY RESPONSIBILITY OR LIABILTY FOR, AND YOU AGREE TO INDEMNIFY NAPSTER FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT ARISING OUT OF OR IN CONNECTION WITH ANY USER CONTENT THAT YOU POST OR IS DISPLAYED WITHIN THE NSN. You also understand that by participating in the NSN, you grant Napster and its affiliates, successors, and assigns a worldwide, perpetual, royalty-free, irrevocable licence to use, display, reproduce, distribute, modify, or publish any of your User Content posted within the NSN for any promotional or commercial purposes, without any obligation to make any payment to you or others or to give you credit. You also understand that any User Content you post or display via the NSN may be visible, searchable, and accessible to other members of the NSN, and to members of the public, and you are allowing members of the public to associate that User Content with your NSN profile. Napster does not make any claim of ownership to any User Content you post or display via the NSN.
(c) Community Guidelines
As a member of the NSN community, you understand that the NSN is a feature designed to help music lovers discover new music, share music, and make social connections with other music lovers. By participating in the NSN, you agree to be respectful of others within the NSN community and you agree to not post any User Content that falls into any of the following categories: (a) commercial communications (including but not limited to spam, multi-level marketing schemes, or unauthorized advertising); (b) viruses, code that interferes with another user’s ability to use the Services, or other malicious code; (c) solicitation of other users’ login information or account access; (d) content that is abusive, defamatory, hateful, threatening, intimidating, harassing, indecent (including but not limited to pornography), or violent; (e) content that could disable, overburden, or impair the proper working or appearance of the Napster services, such as a denial of service attack or interference with page rendering or streaming or other Napster functionality; (f) content that facilitates or encourages violation of this Agreement or Napster’s policies; (g) content that is, encourages, or makes up part of anything that is, otherwise unlawful. ("Prohibited Content"); (h) attempt to decipher, decompile or reverse engineer any of the software used to provide the NSN, or (i) encourage or enable any other individual to do any of the foregoing.
Posting of any material that Napster deems, in its sole discretion, to be Prohibited Content or objectionable in any way, whether offensive to any user or deemed offensive by Napster, in Napster's sole discretion, may result in immediate termination of your user account, which may result in complete deletion of any music library or playlists you have compiled. Napster is not responsible for any loss of personal data resulting from termination of your account. If you have posted infringing User Content more than twice, you will be deemed a repeat infringer, and Napster will permanently block your access to our websites and services.
Although Napster reserves the right, in its sole discretion, to review, edit, restrict, remove, or otherwise approve the content posted within any user profile in the NSN, Napster is under no obligation to monitor any user material. To the extent Napster does monitor content posted by users, such monitoring shall not be deemed to make Napster responsible for any User Content. Napster is not responsible for User Content, nor does it endorse any User Content. If you believe any posts or content within the NSN to be inappropriate, please report abuse by CLICKING HERE.
(a) Termination by You
You may cancel your subscription to any of the Napster Services at any time. To cancel your subscription to any of the Napster Services, please click here. If you are using the Services without a subscription, you may stop using the Services at any time.
(b) Termination by Us
You agree that Napster, in its sole discretion, with or without prior notice, may freeze or terminate your user name, password, user profile, or use of the Application and/or the Napster Service(s) (or any part thereof) for any reason, including, without limitation, if Napster believes that you have infringed upon any rights of another, including intellectual property rights, or violated or acted inconsistently with the letter or spirit of this Agreement or the Napster End User Licence Agreement or for any other reason.
6. CUSTOMER SERVICE
(a) Technical and Account Customer Service (Non-Billing)
You understand and agree that Napster is solely responsible for all customer service, technical help, and account issues related to your subscription. Neither your ISP nor any third party website through which you may have accessed any Service is responsible for customer service, technical help, or account issues related to the Services. You agree not to direct any questions, requests for technical assistance, or inquiries about the Application or any Service to your ISP or to any third party website through which you may have accessed the Application or any Service. For technical or account assistance, please contact Customer Service.
(b) Billing Customer Service
If you pay Napster directly for your subscription (i.e. your credit card or other payment method is billed directly by Napster), you understand and agree that Napster is solely responsible for billing issues related to your subscription. If your Service is billed through a mobile carrier or third-party billing provider (e.g. Apple iTunes), you understand and agree that your mobile carrier or third-party billing provider is solely responsible for billing issues related to your subscription.
7. YOUR ACCOUNT INFORMATION
(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the subscription process (such information being the "Account Information").
(b) Updating Your Account Information
You may update any of your Account Information, including designating a different payment method or changing the applicable expiration date on a currently designated credit card through the account settings associated with your account.
(c) Our Use of Account Information
(d) Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password and for any and all activities that occur under your account. If you believe someone has accessed any Service using your user name and password without your authorization, it is your responsibility to set up a new password by clicking on the Account Status link on the Application and selecting the appropriate link.
8. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Services using your user name and password. The Services available through the Application, and the Application itself (including the Content), are the property of Napster or its licensors and are protected by copyright and other intellectual property laws. The Services provided through the Application may be used for your personal, non-commercial use only. You agree not to (i) reproduce, record, retransmit, redistribute, disseminate, sell, rent, lend, broadcast, publicly perform, adapt, sub-licence, create derivative works of or circulate (including through bots, spiders, or other automated means) the Application or any Content received through the Application or any Service (including music content) to any third party, (ii) exploit any such Content or the Application for commercial purposes without the express prior written consent of Napster, or (iii) to share your password with any third party. You may not make any unauthorized copies of the Application or the Content obtained through the Services, and may only make such copies as are reasonably necessary for your personal, non-commercial use. Because the Services are designed for personal use, you are not allowed to use any automated system for the selection or streaming of files. YOU FURTHER AGREE TO INDEMNIFY AND HOLD HARMLESS NAPSTER FOR YOUR FAILURE TO COMPLY WITH THIS SECTION.
Napster and its licensors retain exclusive ownership of the Application, the Content, the Services, and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or licence to patents, copyrights, trade secrets or trademarks with respect to the Services, the Application or their contents. Napster and its licensors reserve all rights not expressly granted hereunder. You shall promptly notify Napster in writing upon your discovery of any unauthorized use or infringement of the Services (or their contents) or any patent, copyright, trade secret, trademarks or other intellectual property rights of Napster or its licensors. The Application and the Services contain proprietary information that is protected by copyright laws and international treaty provisions.
Napster expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your service immediately for your failure to comply with any such local, provincial or federal law.
9. COPYRIGHT INFRINGEMENT
It is Napster’s policy to respect the intellectual property rights of its artists and content providers. If you are a copyright holder who believes that Napster or one of its Services is hosting or linking directly to infringing copies of your work, please let us know. Notice of alleged copyright infringement should be sent to Napster’s designated copyright agent at the following address:
Rhapsody International Inc.
701 Fifth Ave. Suite 3100
Seattle, Washington 98104 USA
A notification of claimed copyright infringement must be addressed to Napster’s copyright agent listed above and include the following:
- A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed;
- Specific identification of each copyrighted work claimed to have been infringed, including the date and time of the claimed infringement;
- A description of where the material believed to be infringed is located on Napster’s site (e.g. hyperlink);
- Contact information for the complaining party, such as a complete name, address, telephone number, and email address;
- A statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- 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 owner of an exclusive right that is allegedly infringed.
10. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
Napster will make reasonable efforts to keep your account and the Service(s) operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Napster will make reasonable efforts to notify you at least twenty-four (24) hours in advance of any anticipated downtime that will exceed one hour.
Napster also reserves the right to modify or discontinue, temporarily or permanently, functions and features of the Application and Service(s) with or without notice. Due to contractual or other limitations, from time to time, some tracks available in any particular catalog may no longer be available. Napster reserves the right to change or remove Content at any time.
Napster shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).
11. 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 AND ITS LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NONINFRINGEMENT.
NAPSTER MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS- OR ERROR-FREE; NOR DOES NAPSTER 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. NAPSTER MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
12. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL NAPSTER OR ITS PARENTS, MEMBERS, LICENSORS, SUBSIDIARIES, PARTNERS, AFFILIATES, SERVICE PROVIDERS, INVESTORS, SYNDICATORS, DISTRIBUTORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES (COLLECTIVELY THE "PROTECTED PARTIES") 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 THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, 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 ANY PROTECTED PARTY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE APPLCIATION OVER THE PAST TWELVE (12) MONTHS OR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES.
You agree to indemnify and hold Napster, its officers, directors, employees and agents harmless from any claim, liabilities, damages, losses, expenses, proceedings or demands, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to any content or information that you post or display on your NSN user profile, your access or use of the Napster Services, your violation of this Agreement, or your violation of any law, regulation or third-party right.
15. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
Before initiating any arbitration or proceeding, you and Napster may agree to first attempt to negotiate any dispute, controversy or claim arising from this Agreement or related to the Services ("Claim") (except those Claims expressly provided in Section 15(f) below) informally for at least thirty (30) days. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. Napster agrees that your Claim cannot expire during the 30-day negotiation period. You may download a form Notice at www.rhapsody.com/arbitration-forms.
(b) Binding Arbitration between You and Napster
If you do not wish to attempt to resolve a Claim through the optional negotiation process or if the parties fail to resolve a Claim through the negotiation process within the above thirty (30) day period, you and Napster agree that, except as provided in Section 15(f) below, all Claims will be exclusively resolved by binding arbitration solely between you and Napster. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND NAPSTER ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU AND NAPSTER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless you and Napster agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of representative or class proceeding. If the class waiver provisions of this Section 15(b) are found to be unenforceable, then the entirety of this Dispute Resolution and Arbitration Agreement shall be null and void.
(c) Rules Governing the Arbitration
If you do not wish to attempt to resolve a Claim through the optional negotiation process or if the parties fail to resolve a Claim the through negotiation process within the above thirty (30) day period , either party may be initiate arbitration by sending a written notice requesting arbitration to the other party ("Arbitration Notice"). You may download a form Arbitration Notice at www.rhapsody.com/arbitration-forms.
As part of the arbitration, both you and we will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. Other than class procedures or remedies, the arbitrator may award any remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.
Any dispute, claim or controversy arising out of or relating to this Agreement shall be referred to and finally resolved by arbitration in accordance with the Arbitrations Act, 1991 (Ontario). The arbitration will follow the procedures of the Canadian Arbitration Association (CAA)
Except as otherwise provided in this Agreement, (i) you and Napster may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
(d) Arbitration Fees and Awards
If you initiate arbitration for a Claim pursuant to the optional Negotiation Section and other procedures above and are required to pay a filing fee, you may submit proof of payment to Napster in your Arbitration Notice and Napster will promptly reimburse you for the your payment of the filing fee, unless your claim is for $10,000 or greater. If we are initiating arbitration for a Claim, we will pay all costs charged by AAA for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the AAA Rules, except that you will not be required to pay our attorneys' fees or other costs if you do not prevail in the arbitration. If the arbitrator issues you an award that is greater than the value of Napster’s last written settlement offer, then Napster will pay you the amount of the award or CDN. $1,000, whichever is greater.
(e) Location and Manner of Arbitration
Unless you and Napster agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, Napster agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Negotiations and Arbitration
You and Napster agrees that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Napster’s intellectual property rights; and (ii) any Claims related to allegations of theft, piracy or unauthorized use of the Service. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts' jurisdiction in lieu of arbitration. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in this Agreement, some of these provisions may not apply to you.
You and Napster agree that if any portion this "Dispute Resolution and Arbitration Agreement" section is found illegal or unenforceable (except any portion of Section 15(b) above), that portion will be severed and the remainder of this section will be given full force and effect. If Section 15(b) above is found to be illegal or unenforceable then any such Claim will be exclusively decided by a court of competent jurisdiction within Seattle, State of Washington, United States of America, and you and Napster agree to submit to the venue and personal jurisdiction of that court.
16. GOVERNING LAW
This Agreement and any arbitration arising from disputes under 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. You also agree that the state or federal courts in the State of Washington have exclusive jurisdiction over any judicial review or enforcement of an arbitration award and exclusive jurisdiction over any suit between the parties not subject to arbitration. 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.
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. Napster may assign this agreement as it deems appropriate for any reason at any time. 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. This Agreement (including all documents expressly incorporated herein by reference, including but not limited to the Napster End User Licence Agreement) constitute the entire and exclusive Agreement between you and Napster and these Terms supersede and replace any and all prior oral or written understandings or agreements between Napster and you.
MPEG Layer-3 audio coding technology licenced from Fraunhofer IIS and Thomson Licensing
NOTE: Rhapsody® is a trademark of Rhapsody International Inc.
NOTE: Napster is a trademark of Rhapsody International Inc.
Last modified: April 2016.