Napster End User License Agreement
Last modified: June 2014
This Napster end user license agreement ("Agreement") is a legal and binding agreement between you ("you" and "your") and Napster Luxembourg S.à r.l. ("Napster," "we," "us," or "our"). We are a company registered in Luxembourg under company number b 110203 and have our registered office at 60, Route de Luxembourg, l-5408 Bous, Luxembourg. Our VAT number is LU20766427. We can be contacted by e-mail (firstname.lastname@example.org) and by phone (+352 (2) 6005-233).
By clicking the "order with obligation to pay" button or by using any services, whether for a fee or for free, and whether on a permanent or trial basis, you are indicating that you have read this Agreement, that you understand it, and that you consent to be bound by all of its terms and conditions. This Agreement sets forth your rights and obligations with respect to your use of any version of the downloadable Napster software, including, but not limited to, mobile phone apps (the "Software") and any information or data of any kind, including without limitation any artwork, text, video, audio, or pictures served through the software or received from or on any web site owned or controlled by Napster (collectively the "Content") (the software and the content are together referred to as the "Application"; the "software" includes beta and pre-release versions). If you do not agree to the terms of this Agreement, you are not authorized to use the application and you must stop the registration process and promptly cease using and destroy any copies of the software in your possession. Failure to abide by the terms of this Agreement may result in termination of your access to the application, the related Napster service, and/or any part thereof.
1. GRANT OF LICENSE
Napster hereby grants to you a limited, non-exclusive license to use the Application solely for personal, noncommercial use and subject to the following terms:
You may not: (i) frame or link to the Application except as expressly permitted in writing by Napster; (ii) permit other individuals to use the Application; (iii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), tamper with, or create derivative works based upon the Application, including the Content, or any portion thereof (including without limitation any watermarks, security components and digital rights management); (iv) copy the Application or any portion thereof; (v) sell, rent, lease, transfer, distribute, broadcast, display or otherwise assign any rights to the Application to any third party; (vi) remove any proprietary notices or labels on the Application; (vii) use the Application in conjunction with any device or service designed to circumvent technological measures employed to control access to, or the rights in, a content file or other work protected by the copyright laws of any jurisdiction; (viii) use the Application for any commercial or illegal purpose; (ix) use the Application for other than your personal, non-commercial purposes, including without limitation the excessive and/or repeated playing of content (for the apparent purpose increasing royalties paid or ratings as applied to such content); (x) use the Application to invade the privacy of, or obtain personal information about, any Application account holder or user, or to obtain a list of Application account holders or users; (xi) copy, modify, erase or damage any information contained on computer servers used or controlled by Napster or any third party used in connection with the Application or the services provided through the Application; (xii) use the Application to violate any legal right of any third party, including any publicity or privacy right, copyright or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful or otherwise objectionable; or use any data mining, robots, or similar data gathering and or extraction tools in connection with the Application; (xiii) use the Application to post or transmit any unsolicited advertising or promotional materials; (xiv) access or use any password protected, secure or non-public areas of the Application except as specifically authorized in writing by Napster (unauthorized individuals attempting to access these areas of the Application may be subject to prosecution); (xv) impersonate or misrepresent your affiliation with any person or entity; (xvi) use any automated means to access or use the Application (including scripts, "bots" or similar software); or (xvii) modify, translate, reverse engineer, decompile, reproduce, disassemble, or otherwise gain access to or attempt to gain access to any private key or "dev key" (as that term is generally understood within the software industry) associated with the Application, the Content or the Services, or to use or attempt to use any private key or "dev key" in a manner in violation of this Agreement or the applicable Napster Service Terms and Conditions. In no event you are allowed to access the Service with any software not provided by Napster or not authorized by Napster for such access.
The Content served by Napster or third parties directly through the Application is the property of Napster, its licensors, its partners, and/or its advertisers. Title, ownership rights and intellectual property rights in and to such Content is the property of Napster or third parties and is protected by applicable copyright and other law. Other than as expressly provided herein, this Agreement gives you no express or implied license to the Content, including without limitation, any right to use, sell, rent, copy, distribute, broadcast, modify, perform or publicly display any Content.
Napster complies with copyright law and expects its users to do the same. You may not use the Application to help you infringe the copyrights of any third party. Unauthorized use, copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights and a violation of the law. You agree that you shall only use the Application in a manner that does not violate any third-party rights and that complies with all applicable laws in the jurisdiction in which you use the Application, including, but not limited to, applicable restrictions concerning copyrights and other intellectual property rights.
Violation of any of the foregoing restrictions may result in the termination of your account. Napster reserves any and all rights or remedies that may be available in the event of your breach of this Agreement. In the event that you breach this Agreement, and you are (or are acting for the benefit of) a provider of content that appears within the Application, such breach may also result in the removal of such content from the Application and the withholding of royalties related to such content.
You agree to provide true, accurate, current and complete information about yourself as prompted by the registration process (such information being the "Account Information"). You agree to update your Account Information in order to keep such information current. You are solely and entirely responsible for maintaining the confidentiality of your password and user name. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account.
2. SOFTWARE UPGRADES
You acknowledge that Napster may issue upgraded or modified versions of the Application from time to time, and that Napster may automatically electronically upgrade or modify the version of the Application that you are using on your PC. You consent to such automatic upgrading or modification, and agree that this Agreement (as amended in accordance with section 10 from time to time) will govern all such versions. If you want Napster to automatically update the Application on your mobile device as well, please refer to the manual of such mobile device for further information on whether such feature is provided for on the platform of your mobile device.
The Application will operate only on those hardware and software platforms specified in the Application documentation. It is your responsibility to ensure that you have the appropriate software, hardware and Internet connection to operate the then-current version of the Application. Napster reserves the right to cease supporting any hardware or software platform at any time upon providing you with reasonable notice by e-mail and/or a notice on www.napster.com (or such other domain name as may be adopted by Napster for delivering the Application).
Napster may modify the Application at any time without notice and may discontinue any Napster web site at any time without notice.
3. TITLE TO APPLICATION AND SOFTWARE
You may not use the Application or the Software for any illegal purpose. Napster retains all title and ownership rights in and to the intellectual property. Except as expressly stated in this Agreement, Napster does not grant any express or implied right or license to you under any patent, copyright, trademark, or trade secret rights of Napster.
4. LINKED ENTITIES
The Application may contain links to various third party web sites and other resources ("Linked Entities"). These Linked Entities (other than web properties owned or operated by Napster such as www.napster.co.uk) are not under the control of Napster and Napster is not responsible or liable for the content, communications or materials of any Linked Entities. Napster is providing these links to you as a convenience only. The inclusion of any link does not imply endorsement by Napster of the Linked Entity or any association with its operators. You are responsible for adhering to the applicable terms of service for any Linked Entity. You are solely responsible and liable for any interactions you may have with such entities, their sponsors and other third parties.
5. BETA RELEASE OR PRE-RELEASE VERSIONS
In the event that the Software is a beta release or pre-release version, the terms of this Section shall apply. Your license to use the Software expires 120 days after installation (or such other period as indicated by the Software) and the Software may cease to function. The Software you are receiving may contain more or less features than the commercial release of the Software we intend to distribute. While we intend to distribute a commercial release of the Software, we reserve the right at any time not to release a commercial release of the Software or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the commercial release. You agree that the beta release or pre-release versions are not suitable for production use and may contain errors affecting their proper operation. You agree that you will not do anything to circumvent or defeat the features designed to stop the Software from operating after the license expires.
6. USER SUPPLIED MATERIALS
All information, advice, files, links, communications or other materials posted by you to or through the Application ("User-Supplied Materials") shall be your responsibility. You agree not to post or transmit any User-Supplied Materials that infringe a third party's rights, including without limitation any privacy, publicity or intellectual property rights, or that are unlawful, untrue harassing, libelous, defamatory, abusive, tortious, threatening, harmful (including but not limited to viruses, worms or similar software) or that is otherwise objectionable. You grant, or warrant that the owner of such User-Supplied Materials has expressly granted Napster, the royalty-free, perpetual (or, where specifically required by law, whilst all relevant intellectual property rights are protected), irrevocable, fully sub-licensable, non-exclusive right and license to use, reproduce, display, modify, transmit, distribute, perform, display and delete such User-Supplied Materials (in whole or in part) worldwide and or/ to incorporate such User-Supplied Materials in other works in any form, media or technology now known or later developed. User-Supplied materials are public and not private communications.
7. USER-SUPPLIED MATERIALS AND MONITORING
Napster shall have the right, but not the responsibility, to monitor and/or remove User-Supplied Materials deemed harmful or offensive in Napster's reasonable discretion, or that otherwise violate this Agreement or any rules that Napster may institute from time to time. Napster shall have no liability for the failure to receive or for the removal of any User-Supplied Materials. Any opinions, advice, statements, services, offers or other information or content expressed or made available by third parties, are those of the respective author(s) or distributor(s) and not of Napster. Napster neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on or in connection with the Application by anyone other than authorized Napster employees acting in their official capacities.
This Agreement (and your license) shall terminate automatically and immediately:
(i) upon the termination and/or expiry of the subscription service(s) provided to you by Napster (as detailed in section 3(e)(ii) of the Term of Use);
(ii) upon the termination of the subscription service by you (as detailed in section 3(e)(i) of the Term of Use); and
(iii) if you fail to comply with any of the limitations described in this Agreement.
No notice shall be required from Napster to effectuate such termination. In addition, Napster reserves the right to terminate this Agreement and discontinue your access to the Application at any time for any reason, and with or without notice. Upon termination of this Agreement for any reason you must immediately destroy all copies of the Application.
9. CUSTOMER SERVICE
If you have any questions or concerns about your account, please contact Customer Service.
Napster may modify this Agreement at any time upon at least thirty (30) days’ notice in its reasonable discretion. In the event of a material change to this Agreement we will use reasonable efforts to notify you by sending notice to the email address that you have provided to us. If any modification is unacceptable to you, you agree that your only recourse is to immediately terminate your use of the Application and destroy any copies of the Software in your possession (although you will be entitled to a refund of some or all of your paid advance charges or payments for Applications that you do not receive as a result of you terminating your use of the Application in accordance with this section 10). Your continued use of the Application following our release of a revised End User License Agreement on the Application will constitute your binding acceptance of the change. Your acceptance of this Agreement indicates that you give consent to Napster to e-mail you with notices concerning material changes in the terms of this Agreement, the application or the services to which you have subscribed.
11. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS
The Application is provided with restricted rights. You acknowledge that none of the Application may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone that you know, or acting reasonably would suspect, to be on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Denied Parties List or Entity List. By using the Application you are agreeing to the foregoing and are confirming that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
12. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
a) Disclaimer of Warranty
To the extent permitted by applicable law, the application is provided "as is" and "as available" without any representation or warranty of any kind, express or implied, as to the application or its operation. Whilst Napster will provide the application in accordance with reasonable care and skill, Napster, its parent company or companies, its licensors, its investors, and its distribution and syndication partners (the "Napster entities") disclaim all other warranties, including without limitation, any implied warranties of satisfactory quality, fitness for a particular purpose, and noninfringement to the maximum extent permitted by applicable law.
Use of the application is at your own risk. The Napster entities make no warranty that the application will meet your requirements, or that the application will be uninterrupted, timely, secure, free of viruses, or error free; nor do the Napster entities make any warranty as to the results that may be obtained from the application or as to the accuracy or reliability of any content obtained through the application. Except insofar as Napster warrants that it will provide the application with reasonable care and skill, the Napster entities make no warranty regarding any goods or services purchased or obtained through the application or any transactions entered into through the application.
b) Limitation of Liability
Any and all risk arising out of the use and/or performance of the application remains with you. To the extent permitted by applicable law, in no event shall the Napster entities or any of their respective officers, directors, employees, agents or affiliates be liable for any business losses whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other business losses) arising out of or relating to this Agreement or the use of or inability to use the application or any part thereof, even if Napster has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for business losses, some of the above limitations may not apply to you, but they shall apply to the maximum extent permitted by applicable law. In no event shall (to the extent permitted by applicable law) the Napster entities be liable for any damages in excess of a sum equal to 125% of the amount paid for the application or the specific item of content giving rise to the applicable claim for damages.
c) Your responsibility
You agree to compensate Napster and its parents, members, subsidiaries, affiliates, service providers, syndicators, distributors, licensors, officers, directors and employees from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this Agreement, or your violation of any law, regulation or third-party right.
13. GOVERNING LAW
This Agreement and all matters arising from or connected with it (including but not limited to any non-contractual obligations) shall be governed by and construed in accordance with the laws of England.
Each Party agrees that the courts of England have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement (including, without limitation, in relation to any non-contractual obligations).
This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either Napster or you employ any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
If you are a French resident, the following mandatory alternative dispute resolution clause applies to you: Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination shall be submitted to mediation, a mediator jointly selected by the parties.
If you are a Danish resident, the following mandatory alternative dispute resolution clause applies to you: If you are a private consumer, 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 Napster. Complaints to the Consumer Complaints Board can be filed online through 'My complaint' (Min sag) at www.forbrug.dk. www.forbrug.dk.
No delay or failure to take action under this Agreement shall constitute any waiver by Napster of any provision of this Agreement. If we do waive a default by you, that will not mean that we will automatically waive any subsequent default by you. No waiver by us of any of the provisions of this Agreement shall be effective unless we expressly say that it is a waiver and we tell you so in writing.
This Agreement (including all documents expressly incorporated by reference) constitutes the complete and exclusive agreement between Napster and you with respect to the subject matter of this Agreement and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated in this Agreement.
If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect.
This Agreement will bind each party's permitted successors and assignors. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void.
A person who is not party to this Agreement shall not have any rights under or in connection with it. In the event that this Agreement is translated into other languages and there is a discrepancy between the two language versions, the English language version shall prevail to the extent that such discrepancy is the result of an error in translation.
The owners and licensors of the content are intended third-party beneficiaries of this Agreement, and shall have the right to enforce this Agreement against you.
16. GRACENOTE® END USER LICENSE AGREEMENT
This application or device contains software from Gracenote, Inc. of Emeryville, California ("Gracenote"). The software from Gracenote (the "Gracenote Software") enables this application to perform disc and/or file identification and obtain music-related information, including name, artist, track, and title information ("Gracenote Data") from online servers or embedded databases (collectively, "Gracenote Servers") and to perform other functions. You may use Gracenote Data only by means of the intended End-User functions of this application or device.
This application or device may contain content belonging to Gracenote's providers. If so, all of the restrictions set forth herein with respect to Gracenote Data shall also apply to such content and such content providers shall be entitled to all of the benefits and protections set forth herein that are available to Gracenote.
You agree that you will use Gracenote Data, the Gracenote Software, and Gracenote Servers for your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote Software or any Gracenote Data to any third party. You agree not to use or exploit gracenote data, the gracenote software, or gracenote servers, except as expressly permitted herein.
You agree that your non-exclusive license to use the Gracenote Data, the Gracenote Software, and Gracenote Servers will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Gracenote Data, the Gracenote Software, and Gracenote Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote Software, and the Gracenote Servers, including all ownership rights. Under no circumstances will Gracenote become liable for any payment to you for any information that you provide. You agree that Gracenote, Inc. may enforce its rights under this Agreement against you directly in its own name.
The Gracenote Software and each item of Gracenote Data are licensed to you "AS IS." Gracenote makes no representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Gracenote Servers. Gracenote reserves the right to delete data from the Gracenote Servers or to change data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote Software or Gracenote Servers are error-free or that functioning of Gracenote Software or Gracenote Servers will be uninterrupted. Gracenote is not obligated to provide you with new enhanced or additional data types or categories that Gracenote may provide in the future and is free to discontinue its services at any time.
To the extent permitted by applicable law, Gracenote disclaims all warranties express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Gracenote does not warrant the results that will be obtained by your use of the Gracenote software or any Gracenote server. To the extent permitted by applicable law, in no case will Gracenote be liable for any consequential or incidental damages or for any lost profits or lost revenues.
© 2011. Gracenote, Inc. All Rights Reserved.