eMusic US Terms of use - 16th June 2009
eMusic.com Subscription Agreement
THIS EMUSIC.COM SUBSCRIPTION AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU," "YOUR" OR "YOURSELF"), AS THE END USER, AND EMUSIC.COM INC. ("OUR," "US," "WE" OR "EMUSIC"), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED MEDIA SUBSCRIPTION SERVICE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, "THE SERVICE"). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACCESSING THE SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS 18 YEARS OF AGE OR OLDER. IF YOU ARE NOT YET 18 YEARS OLD, PLEASE DISCONTINUE USING THE SERVICE IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
When we refer to the "use" of the Services in this Agreement, we mean any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Services. These terms and conditions, together with the other terms of use applicable to other eMusic owned or controlled web sites and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement, including, without limitation our Privacy Policy constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.
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1. ENROLLMENT IN THE SERVICE
eMusic currently provides the Service for sampling and downloading media in a DRM-free file format. The Service consists of multiple subscription plans whereby, for a certain recurring fee and subject to certain limitations as described herein, you are granted specified download rights to our catalog of DRM-free media files. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to and/or view the media files. You must be at least 18 years of age to enroll. To begin the enrollment process, you must complete the Service registration process located on our web site at https://www.emusic.com/registration/1.html ("eMusic Site") or such other registration process as we may provide from time to time.
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2. MODIFICATION
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We may notify you of any such changes by posting a change notice on our site at http://www.emusic.com. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes shall be effective upon the date we notify you of the same ("effective date"). Your continued use of the Service following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. If any new products or services become available, they will be considered a part of the Service and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.
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3. YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being the "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service, as applicable. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as "IDs"). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
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4. EMUSIC PRIVACY POLICY
eMusic takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collection and use of your personally identifiable information in connection with your use of the Service. Our Privacy Policy is set forth at http://www.emusic.com/help/privacypolicy.html.
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5. TECHNOLOGICAL AND USE LIMITATIONS
5.1 eMusic will make reasonable efforts to keep the eMusic Site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of eMusic may, from time to time, result in temporary service interruptions. eMusic also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that eMusic shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.
5.3 Because the Service is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of files. eMusic reserves the right to immediately and permanently terminate your access to the Service if eMusic believes that you are violating such limitation.
5.4 You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs.
You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party's prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
5.5 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
5.6 eMusic derives its rights to use the media offered on the Service from artists, record labels, publishers and other third parties for fixed periods of time and, sometimes, for limited territories. As well, eMusic is sometimes required to pull certain media off the Service (or otherwise restrict access to such media) for legal or commercial reasons. Therefore, certain media offered or advertised by eMusic may not be available when you try to download, and not all media are available in all countries. Furthermore, you are prohibited from using or accessing the Service if you live in a country outside of the Service territory, currently the United States, Canada, and member states of the European Union.
5.7 Some tracks are not eligible for individual download and are only available as part of a full album download. Album only designations may be changed at any time.
5.8 The eMusic Download Manager may be required to download certain tracks or albums.
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6. TERM, FEES, PAYMENTS; TRIAL PERIOD PROVISIONS
6.1 By registering for the Service, you agree to pay the fees designated for the Service level you select in accordance with our Pricing and Payment Terms, which can be found at http://www.emusic.com/messages/plans.html, and in accordance with this section 6. Subject to your right to terminate the Service prior to the Expiration of a Trial Period (defined hereinafter), if any, as described in Section 6.5 below, you agree to pay the applicable amounts for the minimum period specified therein. For the avoidance of doubt, if you select an offer which includes free bonus downloads as part of your first paid subscription period, you will be charged upon registration and are responsible for paying fees for the Service as described in the preceding two sentences. The term "month" (or "monthly") is defined herein as a 30-day cycle; "quarter" (or "quarterly") is defined herein as a 90-day cycle;"bi-annual" (or "bi-annually" or "6-month") is defined as a 180-day cycle; "year" (or "annual" or "yearly") is defined as a 360-day cycle; and "two-year" (or "two-yearly") is defined herein as a 720-day cycle.
6.2 If you have downloaded some but not all of the individual tracks of a particular album, eMusic may offer you the ability to "complete" the corresponding album at a discounted rate. Please note that the discount mentioned in the previous sentence will not apply if you have previously downloaded the individual tracks from the album during your Trial Period. Consequently, the price of the album will be the full price of the said album. Albums that are no longer available for sale on eMusic are not eligible for this "complete" album option.
6.3 Album Pricing may vary (i.e., increase or decrease) from time to time. Before clicking the "Download Album" button, you must always carefully check the Album Pricing displayed on your screen after refreshing the page. "Album Pricing" refers to the number of credits charged for the download of a full album.
6.4 Subject to the terms in Section 6.9 below, your subscription will continue automatically at the fee rate applicable to the Service, which you have selected unless terminated by eMusic or until you notify eMusic of your decision to cancel your subscription to the Service. PLEASE NOTE THAT IF YOU DO NOT CANCEL ANY TRIAL PERIOD (DESCRIBED AT 6.5 BELOW) WHICH APPLIES, THEN ON EXPIRY OF IT OR ALTERNATIVELY IF YOU EXCEED THE ALLOWABLE NUMBER OF DOWNLOADS DURING YOUR TRIAL PERIOD YOU WILL BE AUTOMATICALLY SUBSCRIBED TO EMUSIC. All subscriptions require a commitment for a minimum period(s) of time and, consequently, cannot be cancelled until the end of the minimum subscription period. You may, at any time during your subscription period, set your account to cancel, or select another monthly, quarterly , bi-annual, or annual subscription plan into which to renew, effective at the end of your then-current plan. At the end of your monthly, quarterly, bi-annual, annual, or two-year subscription period(s), your subscription will automatically renew and you will be billed for a monthly, quarterly, bi-annual, annual, or two-year subscription respectively at your then current plan level, unless you elect to terminate the Service or enroll in another version of the Service. eMusic reserves the right to not automatically renew your subscription.
6.5 If, when registering, you signed up for a subscription with a "Trial Period," you will be allowed a period during which you can try out the Service. Only one Trial Period subscription is permitted per person. Certain tracks will not be available for download during your Trial Period. The Trial Period will expire upon the last day of the number of days indicated in the Trial Period offer concerned, or (ii) if earlier, the day on which you download more than the number of tracks indicated in such offer ("Expiration of the Trial Period"). (Please refer to the confirmation provided on the site or via email for the specific terms of your Trial Period). If you terminate the Service prior to the Expiration of the Trial Period, you will not have any further obligation with respect to the version of the Service to which you have committed and any remaining Trial Period downloads will expire. If you do not terminate and do nothing, at the Expiration of the Trial Period, you will be automatically subscribed to eMusic and billed based on the payment plan selected when you registered (or as you may have updated through the "My Account" section of the Service).
6.6 Each month / quarter / 6-month / year / two-year (as applicable) during the term of this Agreement following the Expiration of The Trial Period, the fees for use of the Service will be billed automatically to the credit card you designated during the Service registration process or subsequently provided to eMusic. Under any Service level, any unused downloads in each 30-day cycle do not carry over to the following cycle and are forfeited, unless your subscription plan expressly allows rollover (Unused downloads from your Trial Period will not be rolled over under any plan or for any other reason. You must use such downloads during your Trial Period or they will be forfeited.). You agree to pay or have paid all fees and charges incurred in connection with your IDs for the Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Service using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com.
6.7 Payment must be made by a major credit card accepted by eMusic (currently, VISA, MasterCard, American Express and Discover), or any other methods of payment as eMusic may accept from time to time. Your credit card will be billed monthly / quarterly / bi-annually / yearly / two-yearly (as applicable) in advance commencing on your initial trial expiration date and continuing thereafter on a monthly / quarterly / yearly / two-yearly basis (as applicable) on the thirtieth (30th) / ninetieth (90th) / one hundred and eightieth day (180th) / three hundred and sixtieth (360th) / seven hundred and twentieth (720th) day (as applicable, respectively) following the expiration of the preceding billing period ("Billing Date"). If eMusic does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by eMusic. Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT EMUSIC, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
6.8 If eMusic does not receive the full amount of your Service account balance within thirty (30) days of the Billing Date, a late payment charge of one and one-half percent (1.5%) per month (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify eMusic of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release eMusic from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to eMusic within sixty (60) days of its first appearance on an invoice or credit card statement.
6.9 You agree to pay eMusic all reasonable attorney's fees and costs incurred by eMusic to collect any past due amounts. Your account may be deactivated without further notice 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 Service account.
6.10 The fees, charges and payments hereunder do not include and you are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
6.11 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY EMUSIC, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.emusic.com. EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. If any such change is unacceptable to you, you may cancel your subscription to the Service, as provided in Section 7 below. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
6.12 Upgrade/downgrade: Once you have entered into a paid Service level, you may upgrade or downgrade. Downgrade means that you are selecting any lower subscription tier. Upgrade means that you are selecting any higher subscription tier. Downgrade can only be effective at the end of your then-current Service level period. At you option, upgrade can be effective either immediately or at the end of your then-current Service level period. For monthly subscriptions, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded subscription and your existing subscription and you agree to receive the difference in credits between your new upgraded subscription and your existing subscription. For example, a subscriber of the "eMusic Basic" plan who upgrades to the "eMusic Premium" plan will pay the difference between $19.99 and $11.99 (i.e., $8.00), and will receive additional credits representing the difference between 75 credits and 30 credits (i.e., 45 credits). For annual subscriptions, if you decide to upgrade immediately, you will be credited with the trade in value of your existing annual subscription as a discount on your new annual subscription. The trade in value is calculated by taking the total price of the current annual subscription, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the subscription. For example, trade in value for a "eMusic Basic Annual" subscription with a 20% discount with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is $95.90 divided by twelve, then multiplied by 6, which equals $47.95. After the upgrade is effective, you agree to pay the fees designated for the Service level you upgraded for in accordance with our Pricing and Payment Terms, which can be found at http://www.emusic.com/messages/plans.html, and in accordance with this section 6.
6.13 eMusic may allow you to re-download each of your previously purchased tracks a limited number of times for any technical reasons at no additional charge; nonetheless, if you exceed a reasonable number of re-downloads (as deemed by eMusic) on any given track(s), you will be required to re-purchase such track(s).
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7. TERMINATION
7.1 We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease.
7.2 Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated.
7.3 Without limitation of any other provisions hereof regarding termination, we reserve the right to terminate your use of the Service, without cause, upon reasonable notice. If such termination occurs in the middle of your subscription period and you have not exhausted the downloads permitted to you under the applicable payment plan, we shall refund to you a share of your prepaid subscription fee for the period prorated for the number of remaining unused downloads.
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8. INTELLECTUAL PROPERTY RIGHTS
8.1 Only you may access the Service using your IDs, unless otherwise agreed to in writing by eMusic. The content available through the Service is the property of eMusic or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of eMusic.
8.2 You acknowledge that eMusic retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or its contents, and eMusic reserves all rights not expressly granted hereunder. You shall promptly notify eMusic in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or eMusic's patent, copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
8.3 By posting messages, inputting data, suggesting playlists, suggesting ideas or engaging in any other form of communication through the Service, you irrevocably agree that any such content, and all intellectual property rights associated therewith, shall become our sole property. We may copy, sublicense, adapt, publicly perform, display or otherwise exploit any such content and rights in any manner whatsoever, throughout the world, in perpetuity, without any obligation to make any payment to you or others or to give you credit.
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9. THIRD PARTY SITES AND INFORMATION
Our website may include links to other sites on the Internet that are owned and operated by online merchants and other third parties, and which may contain references to information, software, materials, products, and/or services provided by the third party. These third party sites may contain information which some people consider inappropriate or offensive. You acknowledge that these third party sites are beyond our control, and we are not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is undertaken at your own risk, and is subject to the terms of use and privacy policies of each site. We include third party links or references merely as a convenience to our Users, and we do not endorse nor assume any liability for the third party websites, services, or products.
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10. OUR LINKING AND WIDGET POLICY
Any web site that links to our website or on which you include the widget: (a) must not frame, surround, obfuscate or create a browser or border environment around any of the Content of our website; (b) may link to, but not replicate, any of the Content of our website; (c) must not imply that eMusic or our website or any artist or performer are endorsing or sponsoring it or its products, unless eMusic has given its prior written consent; (d) must not present false information about eMusic or its Service; (e) must not use any eMusic Services or trademarks except as expressly permitted in these Terms of Use or without the prior written permission from eMusic; (f) must not contain content that is illegal, obscene or defamatory, or that could be construed as distasteful, offensive or controversial; and (g) must not support, endorse or encourage piracy or the unauthorized exploitation of intellectual property rights. "Content" means any present, past and future content of the Service, including, but not limited to, software graphics, text, images, audio, designs, databases, trademarks, logos, domain names, trade names, service mark, any traded identities, any and all copyrighted materials (including source and object code), the "look and feel" of our website. By linking to our website, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms of Use, we reserve the right to deny permission to link to our website for any reason in our sole and absolute discretion.
The eMusic widget is not provided for commercial use, distribution or exploitation. If you are the operator of a commercial website and would like to include the eMusic widget in your website, or if you would like to use the widget for commercial purposes, please contact us by emailing legalrequest@emusic.com.
eMusic reserves the right to remove links or block the eMusic widget at any time and for any reason in its absolute discretion.
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11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE EMUSIC SITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE EMUSIC SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EMUSIC, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT EMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
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13. INDEMNITY
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys' fees, expert fees' and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
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14. CHOICE OF LAW AND CONSENT TO JURISDICTION
This Agreement is governed by the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).
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15. OTHER IMPORTANT PROVISIONS
15.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.
15.2 You shall not use the Service in any manner contrary to local, state or federal law. eMusic expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such local, state or federal law.
15.3 Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
15.4 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
15.5 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
15.6 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
15.7 This Agreement, together with our Privacy Policy and any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service.
15.8 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) (subject to any shorter limitation applicable pursuant to Section 6.6 above) and you hereby waive any longer statute of limitations that may be permitted by law.
15.9 To the extent it may be applicable, you agree with us to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
15.10 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
THIS EMUSIC.COM SUBSCRIPTION AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU," "YOUR" OR "YOURSELF"), AS THE END USER, AND EMUSIC.COM INC. ("OUR," "US," "WE" OR "EMUSIC"), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED MEDIA SUBSCRIPTION SERVICE TOGETHER WITH ALL INFORMATION, CONTENT, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, "THE SERVICE"). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACCESSING THE SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS 18 YEARS OF AGE OR OLDER. IF YOU ARE NOT YET 18 YEARS OLD, PLEASE DISCONTINUE USING THE SERVICE IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE IN ANY MANNER.
When we refer to the "use" of the Services in this Agreement, we mean any actual or attempted access or use of the Service, including, without limitation, any transmission, exchange of information or communication associated with the Services. These terms and conditions, together with the other terms of use applicable to other eMusic owned or controlled web sites and any other policies, rules and provisions which are described, linked or otherwise referred to and form a part of this Agreement, including, without limitation our Privacy Policy constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.
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1. ENROLLMENT IN THE SERVICE
eMusic currently provides the Service for sampling and downloading media in a DRM-free file format. The Service consists of multiple subscription plans whereby, for a certain recurring fee and subject to certain limitations as described herein, you are granted specified download rights to our catalog of DRM-free media files. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to and/or view the media files. You must be at least 18 years of age to enroll. To begin the enrollment process, you must complete the Service registration process located on our web site at https://www.emusic.com/registration/1.html ("eMusic Site") or such other registration process as we may provide from time to time.
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2. MODIFICATION
We may add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We may notify you of any such changes by posting a change notice on our site at http://www.emusic.com. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes shall be effective upon the date we notify you of the same ("effective date"). Your continued use of the Service following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. If any new products or services become available, they will be considered a part of the Service and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.
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3. YOUR REGISTRATION OBLIGATIONS
You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process (such information being the "Registration Data"). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data as required for your use of and access to the Service, as applicable. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (collectively referred to herein as "IDs"). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.
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4. EMUSIC PRIVACY POLICY
eMusic takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collection and use of your personally identifiable information in connection with your use of the Service. Our Privacy Policy is set forth at http://www.emusic.com/help/privacypolicy.html.
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5. TECHNOLOGICAL AND USE LIMITATIONS
5.1 eMusic will make reasonable efforts to keep the eMusic Site operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of eMusic may, from time to time, result in temporary service interruptions. eMusic also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that eMusic shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5.2 By enrolling in the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the Service for your own personal use.
5.3 Because the Service is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of files. eMusic reserves the right to immediately and permanently terminate your access to the Service if eMusic believes that you are violating such limitation.
5.4 You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs.
You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party's prior consent. You agree to comply with all local, state, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.
5.5 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotions or advertising. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
5.6 eMusic derives its rights to use the media offered on the Service from artists, record labels, publishers and other third parties for fixed periods of time and, sometimes, for limited territories. As well, eMusic is sometimes required to pull certain media off the Service (or otherwise restrict access to such media) for legal or commercial reasons. Therefore, certain media offered or advertised by eMusic may not be available when you try to download, and not all media are available in all countries. Furthermore, you are prohibited from using or accessing the Service if you live in a country outside of the Service territory, currently the United States, Canada, and member states of the European Union.
5.7 Some tracks are not eligible for individual download and are only available as part of a full album download. Album only designations may be changed at any time.
5.8 The eMusic Download Manager may be required to download certain tracks or albums.
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6. TERM, FEES, PAYMENTS; TRIAL PERIOD PROVISIONS
6.1 By registering for the Service, you agree to pay the fees designated for the Service level you select in accordance with our Pricing and Payment Terms, which can be found at http://www.emusic.com/messages/plans.html, and in accordance with this section 6. Subject to your right to terminate the Service prior to the Expiration of a Trial Period (defined hereinafter), if any, as described in Section 6.5 below, you agree to pay the applicable amounts for the minimum period specified therein. For the avoidance of doubt, if you select an offer which includes free bonus downloads as part of your first paid subscription period, you will be charged upon registration and are responsible for paying fees for the Service as described in the preceding two sentences. The term "month" (or "monthly") is defined herein as a 30-day cycle; "quarter" (or "quarterly") is defined herein as a 90-day cycle;"bi-annual" (or "bi-annually" or "6-month") is defined as a 180-day cycle; "year" (or "annual" or "yearly") is defined as a 360-day cycle; and "two-year" (or "two-yearly") is defined herein as a 720-day cycle.
6.2 If you have downloaded some but not all of the individual tracks of a particular album, eMusic may offer you the ability to "complete" the corresponding album at a discounted rate. Please note that the discount mentioned in the previous sentence will not apply if you have previously downloaded the individual tracks from the album during your Trial Period. Consequently, the price of the album will be the full price of the said album. Albums that are no longer available for sale on eMusic are not eligible for this "complete" album option.
6.3 Album Pricing may vary (i.e., increase or decrease) from time to time. Before clicking the "Download Album" button, you must always carefully check the Album Pricing displayed on your screen after refreshing the page. "Album Pricing" refers to the number of credits charged for the download of a full album.
6.4 Subject to the terms in Section 6.9 below, your subscription will continue automatically at the fee rate applicable to the Service, which you have selected unless terminated by eMusic or until you notify eMusic of your decision to cancel your subscription to the Service. PLEASE NOTE THAT IF YOU DO NOT CANCEL ANY TRIAL PERIOD (DESCRIBED AT 6.5 BELOW) WHICH APPLIES, THEN ON EXPIRY OF IT OR ALTERNATIVELY IF YOU EXCEED THE ALLOWABLE NUMBER OF DOWNLOADS DURING YOUR TRIAL PERIOD YOU WILL BE AUTOMATICALLY SUBSCRIBED TO EMUSIC. All subscriptions require a commitment for a minimum period(s) of time and, consequently, cannot be cancelled until the end of the minimum subscription period. You may, at any time during your subscription period, set your account to cancel, or select another monthly, quarterly , bi-annual, or annual subscription plan into which to renew, effective at the end of your then-current plan. At the end of your monthly, quarterly, bi-annual, annual, or two-year subscription period(s), your subscription will automatically renew and you will be billed for a monthly, quarterly, bi-annual, annual, or two-year subscription respectively at your then current plan level, unless you elect to terminate the Service or enroll in another version of the Service. eMusic reserves the right to not automatically renew your subscription.
6.5 If, when registering, you signed up for a subscription with a "Trial Period," you will be allowed a period during which you can try out the Service. Only one Trial Period subscription is permitted per person. Certain tracks will not be available for download during your Trial Period. The Trial Period will expire upon the last day of the number of days indicated in the Trial Period offer concerned, or (ii) if earlier, the day on which you download more than the number of tracks indicated in such offer ("Expiration of the Trial Period"). (Please refer to the confirmation provided on the site or via email for the specific terms of your Trial Period). If you terminate the Service prior to the Expiration of the Trial Period, you will not have any further obligation with respect to the version of the Service to which you have committed and any remaining Trial Period downloads will expire. If you do not terminate and do nothing, at the Expiration of the Trial Period, you will be automatically subscribed to eMusic and billed based on the payment plan selected when you registered (or as you may have updated through the "My Account" section of the Service).
6.6 Each month / quarter / 6-month / year / two-year (as applicable) during the term of this Agreement following the Expiration of The Trial Period, the fees for use of the Service will be billed automatically to the credit card you designated during the Service registration process or subsequently provided to eMusic. Under any Service level, any unused downloads in each 30-day cycle do not carry over to the following cycle and are forfeited, unless your subscription plan expressly allows rollover (Unused downloads from your Trial Period will not be rolled over under any plan or for any other reason. You must use such downloads during your Trial Period or they will be forfeited.). You agree to pay or have paid all fees and charges incurred in connection with your IDs for the Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Service using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com.
6.7 Payment must be made by a major credit card accepted by eMusic (currently, VISA, MasterCard, American Express and Discover), or any other methods of payment as eMusic may accept from time to time. Your credit card will be billed monthly / quarterly / bi-annually / yearly / two-yearly (as applicable) in advance commencing on your initial trial expiration date and continuing thereafter on a monthly / quarterly / yearly / two-yearly basis (as applicable) on the thirtieth (30th) / ninetieth (90th) / one hundred and eightieth day (180th) / three hundred and sixtieth (360th) / seven hundred and twentieth (720th) day (as applicable, respectively) following the expiration of the preceding billing period ("Billing Date"). If eMusic does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by eMusic. Your card issuer agreement governs your use of your designated card in connection with the Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT EMUSIC, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.
6.8 If eMusic does not receive the full amount of your Service account balance within thirty (30) days of the Billing Date, a late payment charge of one and one-half percent (1.5%) per month (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify eMusic of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release eMusic from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to eMusic within sixty (60) days of its first appearance on an invoice or credit card statement.
6.9 You agree to pay eMusic all reasonable attorney's fees and costs incurred by eMusic to collect any past due amounts. Your account may be deactivated without further notice 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 Service account.
6.10 The fees, charges and payments hereunder do not include and you are solely responsible for paying any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.
6.11 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY EMUSIC, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.emusic.com. EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF BILLING CHANGES VIA EMAIL. If any such change is unacceptable to you, you may cancel your subscription to the Service, as provided in Section 7 below. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
6.12 Upgrade/downgrade: Once you have entered into a paid Service level, you may upgrade or downgrade. Downgrade means that you are selecting any lower subscription tier. Upgrade means that you are selecting any higher subscription tier. Downgrade can only be effective at the end of your then-current Service level period. At you option, upgrade can be effective either immediately or at the end of your then-current Service level period. For monthly subscriptions, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded subscription and your existing subscription and you agree to receive the difference in credits between your new upgraded subscription and your existing subscription. For example, a subscriber of the "eMusic Basic" plan who upgrades to the "eMusic Premium" plan will pay the difference between $19.99 and $11.99 (i.e., $8.00), and will receive additional credits representing the difference between 75 credits and 30 credits (i.e., 45 credits). For annual subscriptions, if you decide to upgrade immediately, you will be credited with the trade in value of your existing annual subscription as a discount on your new annual subscription. The trade in value is calculated by taking the total price of the current annual subscription, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the subscription. For example, trade in value for a "eMusic Basic Annual" subscription with a 20% discount with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is $95.90 divided by twelve, then multiplied by 6, which equals $47.95. After the upgrade is effective, you agree to pay the fees designated for the Service level you upgraded for in accordance with our Pricing and Payment Terms, which can be found at http://www.emusic.com/messages/plans.html, and in accordance with this section 6.
6.13 eMusic may allow you to re-download each of your previously purchased tracks a limited number of times for any technical reasons at no additional charge; nonetheless, if you exceed a reasonable number of re-downloads (as deemed by eMusic) on any given track(s), you will be required to re-purchase such track(s).
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7. TERMINATION
7.1 We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way, and it will not limit any other rights or remedies which are available to us. You may terminate this Agreement by providing us with written notice of your termination and ceasing to use Service. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease.
7.2 Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated.
7.3 Without limitation of any other provisions hereof regarding termination, we reserve the right to terminate your use of the Service, without cause, upon reasonable notice. If such termination occurs in the middle of your subscription period and you have not exhausted the downloads permitted to you under the applicable payment plan, we shall refund to you a share of your prepaid subscription fee for the period prorated for the number of remaining unused downloads.
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8. INTELLECTUAL PROPERTY RIGHTS
8.1 Only you may access the Service using your IDs, unless otherwise agreed to in writing by eMusic. The content available through the Service is the property of eMusic or its licensors and is protected by copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of eMusic.
8.2 You acknowledge that eMusic retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Service or its contents, and eMusic reserves all rights not expressly granted hereunder. You shall promptly notify eMusic in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or eMusic's patent, copyright, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.
8.3 By posting messages, inputting data, suggesting playlists, suggesting ideas or engaging in any other form of communication through the Service, you irrevocably agree that any such content, and all intellectual property rights associated therewith, shall become our sole property. We may copy, sublicense, adapt, publicly perform, display or otherwise exploit any such content and rights in any manner whatsoever, throughout the world, in perpetuity, without any obligation to make any payment to you or others or to give you credit.
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9. THIRD PARTY SITES AND INFORMATION
Our website may include links to other sites on the Internet that are owned and operated by online merchants and other third parties, and which may contain references to information, software, materials, products, and/or services provided by the third party. These third party sites may contain information which some people consider inappropriate or offensive. You acknowledge that these third party sites are beyond our control, and we are not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is undertaken at your own risk, and is subject to the terms of use and privacy policies of each site. We include third party links or references merely as a convenience to our Users, and we do not endorse nor assume any liability for the third party websites, services, or products.
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10. OUR LINKING AND WIDGET POLICY
Any web site that links to our website or on which you include the widget: (a) must not frame, surround, obfuscate or create a browser or border environment around any of the Content of our website; (b) may link to, but not replicate, any of the Content of our website; (c) must not imply that eMusic or our website or any artist or performer are endorsing or sponsoring it or its products, unless eMusic has given its prior written consent; (d) must not present false information about eMusic or its Service; (e) must not use any eMusic Services or trademarks except as expressly permitted in these Terms of Use or without the prior written permission from eMusic; (f) must not contain content that is illegal, obscene or defamatory, or that could be construed as distasteful, offensive or controversial; and (g) must not support, endorse or encourage piracy or the unauthorized exploitation of intellectual property rights. "Content" means any present, past and future content of the Service, including, but not limited to, software graphics, text, images, audio, designs, databases, trademarks, logos, domain names, trade names, service mark, any traded identities, any and all copyrighted materials (including source and object code), the "look and feel" of our website. By linking to our website, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms of Use, we reserve the right to deny permission to link to our website for any reason in our sole and absolute discretion.
The eMusic widget is not provided for commercial use, distribution or exploitation. If you are the operator of a commercial website and would like to include the eMusic widget in your website, or if you would like to use the widget for commercial purposes, please contact us by emailing legalrequest@emusic.com.
eMusic reserves the right to remove links or block the eMusic widget at any time and for any reason in its absolute discretion.
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11. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE EMUSIC SITE AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE EMUSIC SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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12. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EMUSIC, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT EMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
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13. INDEMNITY
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys' fees, expert fees' and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
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14. CHOICE OF LAW AND CONSENT TO JURISDICTION
This Agreement is governed by the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).
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15. OTHER IMPORTANT PROVISIONS
15.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.
15.2 You shall not use the Service in any manner contrary to local, state or federal law. eMusic expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such local, state or federal law.
15.3 Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
15.4 If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.
15.5 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.
15.6 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.
15.7 This Agreement, together with our Privacy Policy and any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service.
15.8 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose) (subject to any shorter limitation applicable pursuant to Section 6.6 above) and you hereby waive any longer statute of limitations that may be permitted by law.
15.9 To the extent it may be applicable, you agree with us to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.
15.10 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.