Last Updated: June 2017
In certain situations, we make the Services available through partners, including mobile carriers, device manufacturers, app stores, and others (“Partners”). If you have subscribed to or accessed the Services by means of one of our Partners, this Agreement is in addition to any agreement you may have with that Partner, and Napster may provide the Services to you on behalf of the Partner. This Agreement applies regardless of whether your billing relationship is directly with Napster, or with a Partner.
Please note that special terms may apply to you depending on the jurisdiction where you reside or happen to be while accessing or using the Services, or the Partner through which you access the Services. These special terms, which may be different from the generally applicable terms in the main body of this Agreement, are found at the end of this Agreement in Section 13.
By accessing and using the Services, or through your express agreement when requested, you accept this Agreement and you acknowledge and agree that you have read it, that you understand it, and that you consent to be bound by all of its terms and conditions. You represent that you are a resident of a jurisdiction in which the Services are available, and that you have the power to enter into this Agreement (see the Minimum Age requirements below).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
Table of Contents
- Accessing and Using the Services
- Subscriptions, Purchases, Trials, and Payment
- Customer Service
- Intellectual Property Rights
- Copyright Infringement
- Interruptions and Modifications to the Services
- Disclaimer of Warranty
- Limitation of Liability
- Changes to this Agreement
- Dispute Resolution and Arbitration
- Territory- and Partner-Specific Information
Accessing and Using the Services
Requirements for Access
Some of Napster’s Services require a subscription and recurring payment over a specific length of time (e.g. a week, a month, or a year) in order to maintain access to the Services. Other Services may require non-recurring payments to access certain features. Other Services may not require payment from you at all. The available features depend upon the specific Service or tier of Service you use, and will be communicated to you as part of the sign-up or on-boarding process, or built into the software that allows you to access the Services. You may sign up for the Services through one of our Partners, in which case you may be subject to a separate agreement with that Partner, and may be required to make payment (including payment for the Services) directly to the Partner. Many functions of the Services require access to the Internet, and any associated connectivity or data charges are your sole responsibility. You may only use the Services for your personal, non-commercial use.
Registration and Your Account
If we suspend or terminate your account, you cannot create another one without our permission. You are solely and entirely responsible for maintaining the confidentiality of your account credentials and for any and all activities that occur under your account. 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 associated with your account, regardless of who is actually using the sub-accounts. If you believe someone has used your account without your authorisation, you should inform Napster and set up a new password.
You must be at least 18 years old or the age of majority in the territory where you reside (whichever is higher) (the “Age of Majority”) to accept this Agreement and create an account without the prior consent of a parent or legal guardian (“Parental Consent”), and at least 13 years old (or the legal minimum to enter into contracts with the consent of a legal representative in the territory where you reside, whichever is higher) (the “Minimum Age”) to accept this Agreement and create an account with Parental Consent. If you are a parent or guardian of a dependent who is above the Minimum Age but below the Age of Majority, and thereby not old enough to accept this Agreement and create an account, you may accept the terms of this Agreement and create an account on behalf of your dependent. In that case, you agree to take responsibility for the actions of your dependent, the charges associated with your dependent’s use of the Services, and your dependent’s compliance with this Agreement. YOU AGREE TO TAKE STEPS AS ARE APPROPRIATE TO ENSURE SUCH COMPLIANCE AND WILL INDEMNIFY AND HOLD NAPSTER, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS PARTNERS HARMLESS FROM ANY BREACH OF THIS AGREEMENT.
Posting User Content
By posting User Content, you represent that you control the relevant rights to it, and that it does not violate any privacy, publicity, technical, commercial protection, or intellectual property rights of any party, or any applicable law regarding competition, content, or youth protection. Napster is not liable to you for any claims of infringement of intellectual property rights or other third-party rights arising out of or in connection with any User Content that you post, and you hereby agree to indemnify Napster in accordance with the terms of Section 9 below, for any such intellectual property and/or third-party claim. You grant Napster a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, transferable licence to use, display, reproduce, make available to the public, distribute, create derivative works of, modify, translate, delete, or publish all User Content you post (in whole or in part), and a similar licence to use for promotional or commercial purposes all User Content you post and make available publicly, without any obligation to make any payment to you or others or to give you credit, for so long as such User Content remains on the Services. Napster does not make any claim of ownership to any User Content you post.
You must be respectful of others within the Napster community. You agree that you will 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 unauthorised advertising); (b) viruses or other malicious, harmful, troublesome, or nuisance code that interferes with another user’s ability to use the Services; (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), fraudulent, misleading, illegal, or violent; (e) content that could disable, overburden, or impair the proper working or appearance of the Services or other third-party services, such as a denial of service attack or interference with page rendering or streaming or other functionality; (f) content that facilitates or encourages violation of this Agreement or Napster’s other policies; (g) content that impersonates another person (including a recording artist, record label, or music publisher) or is designed to deceive others about the source of the information; (h) content that is associated with attempts to decipher, decompile, or reverse engineer any of the software used to provide the Services; (i) content that encourages or enables any other individual to do any of the foregoing; or (j) content that is, encourages, or makes up part of anything that is, otherwise unlawful ( collectively, the “Prohibited Content”).
Posting of any material that Napster deems, in its sole discretion, to be Prohibited Content or objectionable in any way, may result in immediate removal of the Prohibited Content and immediate suspension, termination, or permanent deletion of your user account and User Content. Napster is not responsible for any loss of personal data resulting from termination or permanent deletion of your account. If you have posted Prohibited Content more than twice, you will be deemed a repeat offender, and Napster may, in its sole discretion, permanently block your access to the Services.
Napster reserves the right, in its sole discretion, to review, edit, restrict, remove, or otherwise approve any User Content, but Napster is under no general obligation to preventatively monitor or remove any User Content. To the extent Napster does monitor or remove User Content, the fact that Napster engages in such monitoring or removal shall not be deemed to make Napster responsible for or aware of any User Content. Napster is not responsible for User Content, nor does it endorse any User Content. If you believe any User Content to be inappropriate, please report abuse by contacting email@example.com or by following other instructions we may provide, but Napster is under no obligation to remove even reported inappropriate User Content.
Napster uses monitoring procedures designed to prevent individuals from unfairly influencing charts or Napster's accounting of plays through the Services. Napster reserves the right to remove any identified or suspected "gaming" plays on the Services both for royalty accounting and charting purposes and to suspend or cancel the account of any user suspected of such “gaming.”
We may, in our sole discretion, remove, disable, edit, and monitor any User Content from the Services for any reason without notice to you or any other user. Violation of any of the terms of this Agreement or the Napster End User Licence Agreement , including the foregoing restrictions on User Content, may, in Napster’s sole discretion, result in the suspension or termination of your account. Napster reserves any and all available rights or remedies. In the event that you violate such terms, and you are (or are acting for the benefit of) a provider of content that appears within the Services, such breach may also result in the removal of such content from the Services and the withholding of royalties related to such content.
Use of the Services While Driving
Always drive alertly and in accordance with road conditions and applicable traffic laws. Any direct interaction with the Services (including, but not limited to, searching for content, selecting content to play, and interacting with other users) is prohibited while driving. If you wish to interact with the Services while driving, you must first stop your vehicle in an appropriate and legal manner and place. You acknowledge that it is your responsibility to comply with all applicable laws when you use the Services in any way while driving, and that your use of the Services in any way while driving is entirely at your own risk. NAPSTER WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGE, INJURY, OR ANY OTHER DAMAGE, LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COST, EXPENSE, OR PAYMENT, EITHER IN TORT, CONTRACT, OR ANY OTHER FORM OF LIABILITY, ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SERVICE WHILE DRIVING.
Subscriptions, Purchases, Trials, and Payment
Many of the Services are offered on a subscription basis. In exchange for a periodic payment from you (the amount and currency of which is determined based on the specific Services you choose as well as your jurisdiction of residence), you have access to the Services to which you subscribed for a defined period of time (e.g., a week, a month, or a year). Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term for the same period of time. When your subscription automatically renews, your payment method (such as a credit card) will be charged our then-current fees for the applicable subscription on your Billing Date (as defined below). However, if the subscription fee has increased, we will provide at least 30 days’ prior notice through email or in-app messaging. Your "Billing Date" is the date on which we periodically charge your preferred payment method (e.g., on a particular date each month for a monthly subscription; on the anniversary for an annual subscription, etc.). If your normal Billing Date does not exist in a particular month because there are fewer than 31 days in that month, your Billing Date that month will be the last day of the month. If we are unable to successfully charge you for your subscription payment (for example, due to an expired credit card), your subscription will be terminated as of your Billing Date (although you may, of course, provide a new payment method and resume your subscription at any time). If your subscription to the Service is billed through a Partner, your Billing Date will be determined according to the Partner’s policies.
Some of the Services may allow you to make individual purchases of content or features offered as part of the Services or of credits that may be used to unlock content or features. These purchases are separate and distinct from subscriptions, and you may not be required to have a subscription in order to make such purchases, although you may 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. 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, but Napster is not obligated to do so and hereby disclaims any such obligation. These purchases do not give you ownership of any 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.
Napster may offer you a free trial period during which you can try out the Services for free (a "Free Trial"). Napster has complete control over the parameters of Free Trials, but they will be communicated to you clearly upon registration. Your Free Trial may be combined with another offer, such as a discounted price for the first month or two of a subscription after your Free Trial. We have sole discretion to determine your eligibility for a Free Trial. Some Free Trials may be based on a number of plays rather than a period of time.
Some Free Trials of subscription-based Services require that you provide us with a payment method prior to initiating the Free Trial. In such cases, you agree that if you have not cancelled your subscription prior to the expiration of your Free Trial, your registered payment method will be automatically charged and your subscription will begin on the first day after the expiration of your Free Trial. If you do cancel your subscription prior to the expiration of your Free Trial, your Free Trial will continue until its designated expiration, but you will not be charged. If your Free Trial does not require you to provide a payment method, you will lose your free access to the Services at the expiration of the Free Trial unless you register for a subscription during the Free Trial, in which case, your payment method will be charged and your subscription will begin on the first day following the expiration of your Free Trial.
Occasionally, we may offer the chance to participate in sweepstakes, contests, surveys, and special offerings (“Special Promotions”) through the Services. Special Promotions may be governed by terms and conditions that are separate from this Agreement. If the provisions of a Special Promotion’s terms and conditions conflict with this Agreement, those separate terms and conditions shall govern the Special Promotion unless expressly stated otherwise.
Cancelling Your Subscription
If you subscribe to the Services directly through Napster, you may cancel your subscription at any time. Instructions on how to do so are available on our website and mobile apps, or you may contact firstname.lastname@example.org. If you cancel your subscription, you will still have access to the Services until the end of the then-current subscription period for which you had previously paid (e.g. week, month, or year). At that point your subscription will end and your payment method will no longer be charged. If you are using the Services without a subscription, you may stop using them at any time. Napster will not provide any cash refund for any payment you have made for subscriptions, credits, or other purchases unless required to do so by applicable law.
If you subscribe to the Services through a Partner, you must contact the Partner to cancel your subscription, as that Partner may have additional terms and conditions that govern your termination (for example, your access to the Services may be tied to your access to telephone service provided by the Partner).
We will continue to maintain your account after the termination of your subscription, so you can continue to access your information, such as your playlists, and use any free Services we may offer. You may also re-subscribe at any later time, and your information will be right where you left it. You have the right to request that we permanently delete all personally identifiable information associated with your account. To make such a request, please contact email@example.com.
Termination by Napster
We may also, in our sole discretion and with or without prior notice, modify or discontinue the provision of any of the Services, or may terminate your access to the Services for convenience. You will be entitled either to continued access to the Services until the end of your then-current billing period, or to a pro-rated refund for any unused period for which you have previously paid, at our discretion. Napster will not be liable to you or any third party for any interference or termination of your access to the Service. If we terminate your access to the Services, we will notify you as soon as possible.
We offer various tiers of the Services, with different features and prices for each. Unless restricted by the Partner through which you access the Services, you may change your Service tier at any time through our website or mobile apps, or by contacting firstname.lastname@example.org. Any upgrade or downgrade will be effective immediately, and you will be awarded a credit in the pro-rated amount that you have already paid for the period remaining on your current billing period. Your Billing Date will change, and you will be immediately charged for any fees for your new tier of service in excess of any credit you have been awarded. Your credit will continue to be used up until your credit balance is zero, at which point your payment method will be charged.
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 non-refundable, except as provided herein. Termination of your subscription shall not relieve you of any obligations to pay accrued and outstanding charges. However, except in unusual circumstances such as fraud or severe violation of the terms of this Agreement, you will be entitled to use the Services for the period for which you have paid in advance, even if you terminate your subscription early.
Methods of Payment
We will provide a summary of any transaction that requires payment before you are obligated to pay. Review the summary carefully and correct any errors you find before finalising your request.
All payments processed by Napster must be made by an approved payment method, such as a credit card, which will be indicated at the time you provide your payment method. We do not accept cash or checks. As between you and Napster, you 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 authorised by you. You agree to pay all fees and charges incurred in connection with your account (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 access or subscribe to the Services through one of our Partners, your direct billing relationship will be with that Partner, not Napster. Charges for in-app purchases will be made by the applicable app store, not by Napster. In these cases, you should consult the terms of the applicable Partner for additional information about payments. Napster disclaims any responsibility or liability for the processing of any of these purchases.
Your account may be deactivated without notice to you if payment is past due, regardless of the amount of money that you owe. You agree to pay any outstanding balance in full within 30 days of cancellation or termination of your subscription.
Unless stated otherwise, if you subscribe to the Services in the United States or Canada, prices exclude all applicable taxes, and outside of the United States and Canada, prices include all applicable taxes. Napster collects any applicable taxes at the rate in effect at the time your transaction is completed. Contact email@example.com if you believe your transaction is exempt from tax.
Payment Method Authorisation
Modifications to Fees or Billing Terms
At any time, Napster may change the fees and/or billing methods applicable to any of the Services. We will give you at least 30 days’ notice (by email or in-app notification) prior to the effective date of any such change applicable to a subscription for which we automatically charge your payment method each billing period. If any such change is unacceptable to you, you may terminate your subscription by contacting firstname.lastname@example.org. Your continued use of the Services following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
Billing and Payment Issues
If you subscribe to or access the Services directly through Napster, Napster is solely responsible for billing and payment issues related to your account. Contact Napster customer service at email@example.com. If your access to the Services is billed through one of our Partners, that Partner is solely responsible for billing issues related to your subscription, and you should contact them for customer service related to billing and payment issues.
Regardless of who maintains your billing relationship, Napster is responsible for all customer service issues other than billing and payment, including technical help and issues related to your account. Contact Napster customer service at firstname.lastname@example.org.
Intellectual Property Rights
The Services, including the available content, our web sites, and our mobile applications (collectively, the “Content”), are the property of Napster or its licensors and are protected by copyright and other intellectual property laws. Except as expressly provided in this Agreement, you are not granted any rights or licence to patents, copyrights, trade secrets, trademarks, or moral rights with respect to the Services or the Content. Napster and its licensors reserve all rights not expressly granted under this Agreement. Except as necessary to use the Services, you agree not to (i) reproduce, record, retransmit, redistribute, disseminate, sell, rent, lend, broadcast, make available, communicate to the public, publicly perform, adapt, sub-license, circulate to any third party, or create derivative works of the Content, (ii) use any automated system for the selection, download, streaming, or electronic distribution of Content, or (iii) exploit the Content for commercial purposes. Because the Services are designed for personal use, you are not allowed to use any automated system for the selection, download, streaming, or electronic distribution of files.
You agree to indemnify and hold Napster harmless for any claims of infringement of intellectual property rights or any other third-party rights related to your account or User Content you post, in accordance with the terms of Section 9 below.
We respect the intellectual property rights of our artists and content providers. If you are a copyright holder who believes that any content available on the Services infringes upon your rights, please let us know. Notice of alleged copyright infringement should be sent to Napster’s designated copyright agent at the following address (email is preferred):
Rhapsody International Inc.
1411 4th Avenue, Suite 1200
Seattle, Washington 98101 USA
A notification of claimed copyright infringement must be addressed to Napster’s copyright agent listed above and substantially include the following:
- A physical or electronic signature of the owner (or person authorised to act on behalf of the owner) of the copyright that is allegedly infringed upon;
- Specific identification of each copyrighted work claimed to have been infringed upon;
- The hyperlink or URL on Napster’s website of the material claimed to be infringed upon (if you do not have access to a link or URL, please give a detailed description of where the material is located) on Napster’s website;
- 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 authorised 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 authorised to act on behalf of the owner of an exclusive right that is allegedly infringed upon.
Napster may, in accordance with our own policy, terminate the accounts of users who are found to be repeat infringers of copyright.
Interruptions and Modifications to the Services
Napster will make reasonable efforts to keep your account and the Service(s) operational. However, you understand and agree that certain technical difficulties, maintenance, or other circumstances (including force majeure events outside our control) may, from time to time, result in temporary interruptions. Napster will make reasonable efforts to notify you in advance of any anticipated downtime that will exceed one hour.
Napster also reserves the right, in its sole discretion, to modify or discontinue, temporarily or permanently, functions and features of the Services with or without notice. The content available on the Services may change from time to time due to licensing or other limitations. Napster reserves the right, in its sole discretion, 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 the Services or the Content.
Disclaimer of Warranty
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS, AND NAPSTER, ITS CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, AS APPLICABLE (COLLECTIVELY, THE “NAPSTER ENTITIES”), EXPRESSLY DISCLAIM ANY WARRANTY OF ANY KIND FOR THE SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
USE OF THE SERVICES IS AT YOUR OWN RISK. THE NAPSTER ENTITIES MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE COMPLETE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, RELIABLE, ACCURATE, FREE OF VIRUSES, ERROR FREE OR THAT DEFECTS OF ANY KIND WILL BE CORRECTED. THE NAPSTER ENTITIES MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES, OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES, AND NO ORAL OR WRITTEN ADVICE, RELEASE OR INFORMATION PROVIDED BY THE NAPSTER ENTITIES TO YOU SHALL CREATE A WARRANTY. FURTHER, THE NAPSTER ENTITIES MAKE NO WARRANTY THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISSATISFACTION WITH THE SERVICES IS TO UNINSTALL THE SERVICES AND STOP USING THEM.
Limitation of Liability
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE NAPSTER ENTITIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS, ASSIGNS, AGENTS OR AFFILIATES, SHALL NOT BE LIABLE FOR PERSONAL INJURY, OR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, PECUNIARY LOSS, LOSS OF INFORMATION OR DATA, BUSINESS OR PERSONAL USE INTERRUPTION OR ANY OTHER COMMERCIAL OR PERSONAL DAMAGES OR LOSSES), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE NAPSTER ENTITIES BE LIABLE FOR ANY CLAIMS OR DAMAGES IN EXCESS OF THE AMOUNT YOU PAID TO NAPSTER DURING THE PREVIOUS 12 MONTHS (THE “REFUND”). THE REFUND WILL BE PROVIDED TO YOU WITHOUT CHARGE, EXCEPT YOU ARE RESPONSIBLE FOR ANY EXPENSES YOU MAY INCUR IN RELATION TO RECEIVING IT. THE FOREGOING LIMITATIONS SHALL APPLY AT ALL TIMES, REGARDLESS OF WHETHER THE REFUND REMEDY FAILS OR IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
Subscriptions through a Partner
If you have subscribed to the Services through one of our Partners, you understand that the Partner is your contracting party and the terms of any agreement you have with the Partner governs your relationship with them. Napster is not responsible or liable for any defect or other violation under your agreement with our Partner, and any of your claims arising from that agreement shall be asserted against the Partner.
To the extent allowable by applicable law, you agree to defend, indemnify, compensate, and hold Napster, its parents, shareholders, subsidiaries, affiliates, officers, directors, employees, service providers, distributors, licensors, agents, successors, assigns, Partners, and other representatives (as well as their officers, employees, and agents) harmless from all third-party claims, judgments, liabilities, expenses, costs or related penalties, including, without limitation, reasonable attorneys’ fees, arising out of, resulting from or in any way connected to (a) any User Content you post on the Services, (b) your access to, use of, or misuse of the Services or the Content, (c) your breach of this Agreement, or (d) your violation of any law, regulation, intellectual property, or other rights of a third party.
Changes to this Agreement
We may, at our sole discretion, change this Agreement from time to time. If we make changes, we will notify you by revising the "Last Updated" date at the top of this Agreement, and for significant changes, we may provide you with additional notice (such as by sending you a notification) or ask you to explicitly accept the new version of this Agreement. Any changes will become effective 14 days after notification. If you object to any of the changes, you may terminate your account and stop using the Services. If we do not ask you to explicitly consent to the changes, your continued use of any Service or your explicit consent following a change will constitute your binding acceptance of the change.
Dispute Resolution and Arbitration
Unless otherwise specified in Section 13 below (as in the case of Brazilian or European consumers), this Agreement shall be construed in accordance with and governed by the laws of the State of Washington, United States of America, without regard to choice or conflicts of laws principles (the “Applicable Law”). 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.
Final and Binding Arbitration
TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND NAPSTER HEREBY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL IN ANY APPLICABLE JURISDICTION. Any and all disputes, controversies or claims (collectively, “Claims”) arising under or relating to the breach, interpretation or application of the terms of this Agreement or any extension or modification of the Agreement, regardless of the applicable legal theory, shall be exclusively resolved by a single arbitrator through final, binding and confidential arbitration, as follows:
- If you are a resident of the United States of America, any arbitration between you and Napster will be administered by the American Arbitration Association under its then-current Commercial Arbitration Rules (available here), as modified by this Agreement;
- If you are a resident of a member state of the European Union, the provisions of this Section 11(b) through (h) do not apply to you – please see Section 13;
- If you are a resident of any other territory, any arbitration between you and Napster will be administered by the International Chamber of Commerce, under its then-current Rules of Arbitration (available here ), as modified by this Agreement.
Any arbitrator so appointed shall adhere to the Applicable Law and applicable rules of arbitration (the “Arbitration Rules”), and shall be empowered to (i) determine the appropriate venue for the arbitration or the method for conducting the arbitral process (such as by written submissions or telephonic hearings) in lieu of the parties meeting at a physical venue, upon considering the territorial location of the parties, (ii) award actual money damages (but not punitive damages) against the party found to have violated this Agreement, and (iii) grant in his or her award, injunctive or other types of equitable relief, to enforce specific performance of this Agreement, and to prevent any continuing or further violation of its terms. Except as otherwise provided in this Agreement, the arbitrator's decision will be final. Judgment upon the award rendered in such arbitration may be entered in any court having jurisdiction, provided that any award may be challenged if the arbitrator fails to follow the Applicable Law.
If your Claim is for US$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 applicable Arbitration Rules. If your Claim exceeds US$10,000, the Arbitration Rules will determine the right to a hearing.
Arbitration Fees and Awards
The cost of any arbitration shall be borne equally by the parties, except that each party shall be responsible for its own attorneys’ fees. If the arbitrator rules in your favour, then Napster will pay you the greater of (i) the amount of the award stated by the arbitrator, (ii) the amount of Napster’s most recent written settlement offer, or (iii) US$1,000.
Class Action Waiver
You and Napster both agree that each may only bring a Claim against the other in an individual capacity, and not as a plaintiff or class member in any purported class action or other representative proceeding. Further, unless you and Napster agree otherwise, no judge or arbitrator may consolidate more than one person's Claims or otherwise preside over any form of representative or class proceeding.
Before initiating any arbitration or proceeding, you and Napster may agree to first attempt to negotiate any Claim informally for at least 30 days; provided, however, 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 unauthorised use of the Service. A party who intends to seek such negotiation must first send to the other, by certified mail or commercial delivery service, a written Notice of Dispute (“Notice”). The address to send a Notice to Napster is Rhapsody International Inc., Legal Department, 1411 4th Avenue, Suite 1200, Seattle, WA 98101 USA. The Notice must (i) describe the nature and basis of the Claim, and (ii) set forth the specific relief sought.
Exceptions to Arbitration
Notwithstanding anything to the contrary in this section, either party may, in lieu of arbitration, assert an individual action in small claims court for Claims that are within the scope of such courts' jurisdiction. 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.
With the exception of the sub-sections 11(a) and (b), if any portion of this Section 11 is found to be illegal or unenforceable or excessively broad as to duration, geographical scope or activity, then that portion shall be construed so that the remaining portions of this section shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad portion shall be deemed, without further action on the part of any party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable. If nonetheless, the portion of this section is considered to be illegal or unenforceable, that portion will be severed and the remainder of this section will be given full force and effect. If either or both of sub-sections 11(a) or (b) are found to be illegal or unenforceable, then, unless otherwise required by applicable law, any such Claim will be exclusively decided by a court of competent jurisdiction within Seattle, State of Washington, USA, and you and Napster agree to submit to the venue, personal and subject-matter jurisdiction of that court.
No delay or failure to take action under this Agreement shall constitute any waiver by Napster of any provision of this Agreement. Any waiver by Napster of any of the provisions of this Agreement must be express and in writing, and will not mean that Napster will waive any other provision in another situation.
If any portion of this Agreement is held to be invalid or unenforceable, or excessively broad as to duration, geographical scope or activity, then that portion shall be construed so that the remaining portions of this Agreement shall not be affected, but shall remain in full force and effect, and any such illegal or overly broad portion shall be deemed, without further action on the part of any party, to be modified, amended and/or limited, but only to the extent necessary to render the same valid and enforceable in the applicable jurisdiction. If nonetheless, a portion of this Agreement is considered to be unenforceable by a court of competent jurisdiction, then the remainder of the Agreement shall continue in full force and effect.
Except as expressly stated in this Agreement, a person who is not party to this Agreement shall not have any rights under or in connection with it.
This Agreement may be available in various translations, but to the extent allowable by applicable law, the English version controls. If another translation applies to you, you acknowledge that this Agreement was written in English and translated into other languages, and translation errors may exist.
You may contact us at email@example.com.
MPEG Layer-3 audio coding technology licenced from Fraunhofer IIS and Thomson Licensing
NOTE: Napster® and Rhapsody® are trademarks of Rhapsody International Inc.
Territory- and Partner-Specific Information
Additional information or resources apply in certain territories, or when you access the Services through certain Partners. Please read the following information for the territory in which you reside or the Partner through which you access the Services:
If you are a subscriber to the BMW Online Entertainment service offered by Bayrische Motore Werke AG (“BMW”) in certain territories (which is subject to a separate agreement with and payment to BMW), you may, subject to your agreement with BMW, select and activate the Services as part of the BMW Online Entertainment service. By doing so, your payment to BMW for the BMW Online Entertainment service applies to your use of the Services, and no additional payment to Napster is required. You are responsible for any data connectivity costs. The necessary software to access the Services is pre-installed on some BMW cars. Some functions of the Services may not be accessible through the software provided by BMW in your car, but may be accessible via other compatible devices, and certain aspects of the Services as offered through the BMW Online Entertainment service may be different than the Services offered elsewhere. If you are a user of the Services prior to activating the Services through the BMW Online Entertainment service, you may be able to sign in to the Services as part of the BMW Online Entertainment service using your existing user name and password. For further information about software, terms, or payment to BMW, please see your BMW car’s user’s manual or contact BMW directly.
You have the right to withdraw from this Agreement and cancel your subscription to the Service for a full refund only if: (1) you notify us of such cancellation within the first 14 days after registration, and (2) you have never logged into your account on the Service or otherwise begun transmitting music through the Services. If you withdraw, you will receive a reimbursement of the full price you paid for the Services, as soon as possible under our reimbursement policy, (usually within 30 days after the day of cancellation).
This Agreement shall be governed by the laws of Federative Republic of Brazil, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the courts of the city of São Paulo, state of São Paulo. 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.
Brazilian law shall apply to your use of the Services, including specific provisions about privacy. In order to comply with the applicable law, Napster will store data related to the activities performed by You when using Services such as, but not limited to, access logs, for the term established by Law 12.965/2014 or other updated regulation that replaces or modifies it.
Once you stop accessing and using the Services, you may request the exclusion of all data related to your use of the Services; this, however, shall not prevent Napster from complying with the storage obligations set forth by Law 12.965/2014 or other updated regulation that replaces or modifies it.
Pursuant to Brazilian copyright law (Law 9.610/1998, Article 29, VII), the Services provided by Napster are considered electronic and interactive music distribution.
If requested by a specific court order or in situations authorised by law, Napster may disclose your information to third parties.
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice, which is hereby offered as a convenience to you:
The name, address of the provider of this service is Rhapsody International Inc., 1411 4th Avenue, Suite 1200, Seattle, WA 98101. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address or to firstname.lastname@example.org.
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 Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (916) 574-7950 or (800) 952-5210.
Applicable Law and Jurisdiction
The choice of law provision of Section 11(a) shall not deprive you of the protection afforded to you by the law of the country of your habitual residence.
If you are a resident of a member state of the European Union, the provisions of Section 11(b) through (h) do not apply in respect of the applicable jurisdiction. You may bring proceedings against Napster either in the courts of the member state in which Napster is domiciled or, regardless of the domicile of Napster, in the courts for the place where you are domiciled.
Notwithstanding anything to the contrary in this Agreement, in order for you to be bound by this Agreement or modifications or updates to this Agreement, you will be required to explicitly accept and agree to the new version of this Agreement.
Right of Withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract. To exercise the right of withdrawal, you must inform us of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter or e-mail), at:
Napster Luxembourg S.à r.l.,
60, Route de Luxembourg
L-5408 Bous, Luxembourg
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
You may use the model withdrawal form below, but it is not obligatory. If you use this option, we will communicate to you an acknowledgement of receipt of such a withdrawal in a durable medium (e.g. by email) without delay.
MODEL WITHDRAWAL FORM
An: Napster Luxembourg
S.à r.l. 60, Route de Luxembourg
L-5408 Bous, Luxembourg
I/We hereby give notice that I/We withdraw from my/our contract for the provision of the following service: Napster
Name of consumer(s):
Address of consumer(s):
Signature of consumer(s) (only if this form is notified on paper):
Effects of Withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
Refund for Advance Payments
You are entitled to a refund of some or all of your payments made in advance if Napster has breached these terms, if Napster terminates your account, if you terminate your subscription due to serious malfunction or prolonged suspension of the Services, if you terminate your subscription immediately following and as a direct result of modification of prices or other terms of this Agreement by Napster, or if required by mandatory applicable laws.
This Agreement may be available in various translations. If you reside in Europe, if there is a version available in your native language, that version is applicable to you. You acknowledge that this Agreement was written in English and translated into other languages, and translation errors may exist.
You have the right to complain to the Consumer Complaints Board. Before submitting a complaint to The Consumer Complaints Board you must first attempt to solve the problem directly with us. More information about the complaint process, as well as online submission of complaints, are available to the Consumer Complaints Board’s website, at www.forbrug.dk.
Article L.136-1 of the French Consumer Protection Code provides protection to French consumers with regard to automatically renewing contracts, but you may cancel your subscription with Napster at any time for any reason.
Any dispute, controversy, or claim arising under, out of, or relating to this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach, or termination, shall be submitted to mediation, under a mediator jointly selected by the parties.
Posting User Content
The licence granted by you in Section 1(e) is valid only as long as you allow the publication of the User Content and the User Content is not deleted by you or by Napster (upon your request and after a reasonable period of time), and does not include the right to create derivative works of or to modify the User Content or the right to use your User Content for promotional or commercial purposes.
To the extent the Services are defective, you are entitled to your statutory rights under German law, notwithstanding anything to the contrary in the Agreement.
Limitation of Liability
Notwithstanding anything to the contrary in the Agreement, Napster or its legal representatives or agents may be liable without limitation for:
- damages resulting from injury to life, body, or health that are based on an intentional or negligent breach of duty by Napster or by Napster´s legal representatives or by Napster´s vicarious agents;
- any other damages which are based on an intentional or grossly negligent breach of duty and fraudulent intent from Napster or Napster´s legal representatives or Napster´s vicarious agents;
- damages under Germany’s Product Liability Act insofar as Napster has assumed a guarantee for the quality;
- damages that have arisen due to slightly negligent violation of essential contractual obligations by Napster or one of Napster’s vicarious agents in connection with the use of the Service only to the extent of the typical contractual foreseeable damage;
Otherwise, the limitations of Napster’s liability described in this Agreement apply.
Alternative Dispute Resolution
Napster is not willing and not obligated to participate in dispute resolution procedures before bodies responsible for out-of-court settlement of consumer disputes.
Pursuant to the provisions of chapter I of Title III of Part III of Legislative Decree n. 206 of 6 September 2005, you have the non-waivable rights to submit and/or defend your claim, demand, or action arising out of or in connection with your non-waivable rights under articles 48 to 67 of Legislative Decree n. 206 of 6 September 2005 before (i) the Autorità Garante della Concorrenza e del Mercato, (ii) the tribunal of your place of residence or domicile, or (iii) where applicable, the alternative dispute resolution or mediation competent authorities as provided by articles 66, paragraph 5 and 66-quater, paragraph 3 of Legislative Decree n. 206 of 6 September 2005.