This Agreement is in addition to, and not in lieu of, the Napster End User License Agreement
to which you must also agree in order to download the Napster Application to your hard drive ("Application" means the "Software" and "Content" as defined in the Napster End User License Agreement
). By clicking the "I Agree" button, you not only agree to the terms set forth herein, but you affirm your consent to the Napster End User License Agreement
. The Napster End User License Agreement
is hereby incorporated by reference hereto and made a part of this Agreement.
1. ENROLLMENT IN THE SERVICES
In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted the right to stream and/or download content that is available via the applicable Service(s) pursuant to the terms specified during the registration process, and simultaneously have access to our broad range of editorial and contextual information about the content and its creators. You will also be given the option to participate in the Social Network (defined below), whereby users can collaborate and share listening preferences and playlists from their individual profiles.
In order to access your Service(s), you must complete the registration process, have downloaded the Application (if required), possess the hardware and software required by the Application, and be connected to the Internet.
as it may be updated from time to time.
By subscribing to or accessing any Service, you are representing to us that you are authorized to use the credit card you submit for payment (if any) and that you reside in the United Kingdom. If you are a parent or guardian paying on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such other person, any charges associated with that person's use of any of the Services, and that person's compliance with this Agreement. It is your responsibility to protect your credit card from use by such persons. You agree to take such steps as are appropriate to ensure such compliance and will compensate and hold Napster and its affiliates and distribution and syndication partners harmless from any breach of this Agreement.
2. TERM, FEES AND PAYMENTS
Applicable fees for Services may include a periodic (e.g., monthly, quarterly or annual) subscription fee based on the particular Service requested, transaction fees, taxes, and additional fees for the purchase of permanent downloads.
(a) Free Trial Period
Napster may offer you a one-time, free trial period during which you can try out such Service(s) for free (a "Free Trial"). The length of any such Free Trial, and the particular Services included may vary from time to time. If you terminate your subscription prior to the expiration of any Free Trial, you will not have any financial obligation with respect to your subscription, and your credit card will not be charged for your use of the Service. However, you will be charged for any Services you choose to access that are not included within the Free Trial. For example, if your Free Trial does not include permanent downloads from the online music store, you will be charged the applicable fee. The Free Trial will expire at midnight Pacific Standard Time on the last day of the Free Trial, and your initial paid subscription will automatically be activated at 12:01am Pacific Standard Time on the day following the last day of your Free Trial ("Activation Date"). Each user is entitled to one Free Trial per Service. If you subscribe to a Service after you have already received a Free Trial on such Service, your credit card will be billed immediately upon registration. Free Trials are also limited to one per credit card. Should two customers use the same credit card to subscribe to Napster, only the first customer is eligible to receive a Free Trial.
(b) Initial Subscription Payment
By registering for one of the Services, you agree that if you do not cancel your subscription before the expiration of your Free Trial, you will pay the applicable fees for the Service that you select upon registration. If you do not cancel your subscription prior to the expiration of the Free Trial, we will charge your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees will automatically be charged to the credit card you designated as the credit card to be billed for your account.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month, one quarter, etc.). At the time of renewal, your credit card will be charged our then-current fees for the applicable subscription, provided that if the fee for your renewal Service has increased, we will notify you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to elect not to renew. If you wish to elect not to renew or terminate your subscription, please click here
(d) Your Billing Date
Your credit card will be charged for the renewal term of your Service on your billing date ("Billing Date"), based on the type of subscription (e.g., on a particular date each month for a monthly subscription; on the three-month date for a quarterly subscription; on the anniversary for an annual subscription, etc.). If, however, your Activation Date is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be.
(e) Early Termination
Some subscriptions are provided and priced based on your commitment to subscribe for a minimum period of time, e.g. six months or twelve months. Such minimum commitment is based on your Billing Date, rather than the first or last day of a calendar month. You acknowledge that, in the event of early termination by you, we may incur costs and/or diminution in the value of the agreement that may be difficult to measure. Therefore, in the event of early termination for any reason (including, without limitation, voluntary termination by you or credit card expiration), the early termination fee stated at the time of registration may be charged to you as compensation for Napster's losses resulting from your early termination.
(f) Subscription Upgrades
If you are a subscriber to a premium tier of the Service that includes on-demand streaming of full length tracks or certain other premium features, and if you have not logged in to the Service for at least sixty (60) days or two billing cycles (whichever occurs sooner), Napster may change your Service tier to another Service tier that does not include access to the on-demand streaming feature or certain other premium features. Generally, such change will include a lower price and a savings to you; in no event will such change result in a higher price. If, after such change, you attempt to access on-demand streaming or any other premium feature available in your original Service tier, you will be provided with a message offering you the opportunity to upgrade back to your original Service tier, at the current subscription price for that Service tier.
If you would like to change the Service(s) to which you subscribe, whether to upgrade to your original Service tier after the change described above, or to make any other change, you may change or upgrade your Service at any time by selecting "Manage My Account" from the "My Account" menu in the Napster Application, and then clicking "Edit" next to "Subscription Status" in your Account Summary. However, you may be required to contact Customer Service
for certain changes.
(g) Track Downloads
Some Services may include the ability to obtain permanent downloads independent from any subscription Service(s) to which you may subscribe. In some cases, such downloading will incur fees which are charged on a per-permanent download basis. If such purchase fees are required, you will be made aware that a cost will be incurred and asked to explicitly accept the charges prior to commencement of downloading. However, if you have explicitly turned on "one click purchasing" (or similar functionality) in your account settings, you will not be asked to accept the charges prior to commencement; with "one click purchasing," your single request to "purchase" is your confirmation of the order.
Regardless of the use of the word "purchase," and except as set forth in the following paragraph, all tracks offered for download are offered for license, not purchase or sale, and are subject to this Agreement and any other license terms and conditions applicable to the content, including, without limitation, any restrictions imposed by the use of any digital rights management technology. All licenses to download are personal to the customer. Your request to "purchase" a track by downloading is personal to you, and the track may not be used, sold, rented, transferred, licensed or otherwise provided to any other user. License to downloaded tracks include only those rights explicitly stated in the Service (typically, the right to play back for your own personal use from your personal computer, CD player, digital player, or other personal consumer electronic device), and, for the avoidance of doubt, do not include the right to create a derivative work, to make copies other than for your own personal use, or to use it in any commercial manner.
All permanent downloads purchased from Napster, regardless of format, can be downloaded only once. Napster will not replace or allow re-downloading of lost or damaged music files once the initial download is complete. For this reason, Napster recommends that you backup your Napster purchased music to CD or external hard drive for personal use.
(h) No Warranties
WITHOUT LIMITING ANY PROVISION HEREIN, NAPSTER MAKES NO WARRANTY THAT ANY PARTICULAR COMPACT DISC BURNER, PLAYER, PORTABLE DEVICE, OR OTHER HARDWARE WILL BE COMPATIBLE WITH NAPSTER'S APPLICATION OR THAT ANY COMPACT DISC BURNED USING THE APPLICATION WILL FUNCTION IN ALL COMPACT DISC PLAYERS. IT IS SOLELY YOUR RESPONSIBILITY TO ENSURE THAT YOUR RECORDING AND PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE APPLICATION.
(i) No Refunds
All fees paid and charges made prior to termination as provided herein, including, without limitation, any advance charge or payment for the subscription term during which you terminate your subscription, are nonrefundable (although you will be entitled to a refund of some or all of your paid advance charges or payments if Napster has breached these terms). Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(j) Methods of Payment and Credit Card Terms
All payments must be made by Visa, Visa Delta, Visa Electron, MasterCard/Eurocard, American Express or Maestro/Solo card. We do not accept cash, cheques or any other payment form. AS BETWEEN YOU AND NAPSTER, YOU, AND NOT NAPSTER, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR SERVICES BILLED TO YOUR CREDIT CARD BY A THIRD PARTY WHO HAD ACCESS TO YOUR CREDIT CARD OR CREDIT CARD NUMBER, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU (PROVIDED THAT NAPSTER WILL BE RESPONSIBLE FOR ENSURING THE SECURITY OF YOUR CREDIT CARD DETAILS IN ITS POSSESSION). You agree to pay all fees and charges incurred in connection with your subscription and its password (including, without limitation, any applicable taxes) at the rates in effect when the charges were incurred. If Napster does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by Napster.
(k) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the amount of money that you owe. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Service(s).
Prices include VAT and all taxes unless stated otherwise.
(m) Transaction Fees
Napster may impose an additional transaction fee based on transactions associated with Services, including (without limitation) a transaction fee applied to your periodic subscription fee, or your purchase of permanent downloads or burns. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction, likely via the order path for a Service, by email notification concerning your Service(s) and applicable fees, through the order path for permanent downloads, or in a similar, explicit manner.
(n) Credit Card Authorization
To ensure that your credit, debit or charge card is not being used without your consent, Napster may validate name, address and other personal information supplied by you during the order process against appropriate third party databases including, without limitation, registered credit reference agencies and fraud prevention agencies, who may keep a record of that information. By accepting these terms and conditions you consent to such checks being made.
(o) Modifications to Fees or Billing Terms
NAPSTER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING WITHOUT LIMITATION THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT OR SERVICES PROVIDED BY NAPSTER, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your subscription by contacting customer service. Your continued use of the Service(s) following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO NAPSTER TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SERVICE(S) YOU USE.
3. REFER-A-FRIEND PROGRAM
(a) A qualified referral ("Qualified Referral") is triggered when a person ("Referred Customer") on the Napster website ("Site") who has not previously taken a trial via the Site, and who arrives at the Site via Your Refer-A-Friend link ("Link") pays for three (3) months of Napster subscription service. Only one Qualified Referral can be earned for each Referred Customer. IF YOUR SUBSCRIPTION IS VIA A PRE-PAID CARD, NO CREDIT CARD (NOCC) TRIAL OR LIMITED LIFETIME FREE (LLF) USER ACCOUNT , YOU ARE NOT ELIGIBLE FOR THE REFER-A-FRIEND PROGRAM OR ANY FREE CREDITS.
(b) For each Qualified Referral You will earn a free month of credit for the Napster subscription service which will automatically be applied by Napster against your account. Credit has no cash value, is non-refundable and non-transferrable. Trial sign ups cancelled by the Referred Customer prior to the Referred Customer making three (3) months' worth of payment for the Napster subscription service do not qualify as a Qualified Referral.
(c) Bulk email distribution, distribution to strangers, or any other promotion of a Link in a manner that would constitute or appear to constitute spam or unsolicited commercial email under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of the Referring Customer's account and deactivation of the Link.
, available at www.napster.co.uk/privacypolicy
(e) Napster reserves the right to cancel or modify the Refer-A-Friend Program at any time in its sole discretion. Napster reserves the right to close the account(s) of any Referring Customer and/or Referred Customer, and to request proper payment if either attempts to use the Refer-A-Friend Program in a questionable manner or in breach of Napster terms and conditions or in violation of any law, statute or regulation.
(f) Limitation of Liability
IN NO EVENT SHALL NAPSTER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY BUSINESS LOSSES, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NAPSTER'S MAXIMUM AGGREGATE LIABILITY TO THE REFERRING CUSTOMER, THE REFERRED CUSTOMER AND/OR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE LIMITED TO NO MORE THAN A SUM EQUAL TO 125% OF THE MONETARY VALUE OF THE SUBSCRIPTION SERVICE EARNED BY THE REFERRER OR REFEREE PARTICIPATING IN THIS PROGRAM. THE REFERRING CUSTOMER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE. WHILST NAPSTER WILL PROVIDE THE SUBSCRIPTION SERVICE WITH REASONABLE CARE AND SKILL, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXCLUDED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF SATISFACTORY QUALITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).
4. SOCIAL NETWORK
The Napster Service and Application provides you with access to a social network feature ("Social Network"). The Social Network allows you to discover music by making social connections with other Social Network members, sharing your playlists and listening preferences, and locating your friends' Social Network profiles via integration with other third party services such as Gmail and Facebook. By using any of the Napster Services you are automatically a member of the Social Network and you understand that other members of the Social Network may discover your Social Network profile via integration with third party services that they use.
(a) Customizing Your User Profile
You may choose whether to use the Social Network feature by making your profile public and creating social connections with other users. To customize your profile, you must log in to [www.napster.co.uk
], select the "My Music" menu, then select "Profile." Your profile settings give you the ability to display a photo, write a short bio, and make your playlists, library and listening history public within the Social Network. Your Social Network profile settings also give you the option to share your listening preferences on Facebook. By choosing to connect your Social Network profile to your Facebook account, you understand that your Napster listening selections will automatically be displayed within your Facebook profile and linked to your name within the Facebook newsfeed.
If you do not choose to make your profile public, only your genre and artist listening preferences will be anonymously displayed. Your default anonymous profile will not show any personally identifiable information, nor will it show any playlists you have created. Within your profile settings, you are also given the option to completely hide your profile. If you choose to hide your profile, none of your listening preferences will be displayed, and you will not be able to use the Social Network to connect with other users.
(b) Information You Post Within the Social Network
. Napster cannot monitor or prevent other users from viewing or using any personally identifiable information that you choose to post within your profile. By accepting these terms, and participating in the Social Network, you do so entirely at your own risk you understand that by making your profile public, any information you post can be viewed by all users. Because of the public nature of your profile (once customized), you should not post any personally identifying information such as email addresses, mailing addresses, phone numbers, or credit card information belonging to you or others. Napster is not liable in any way for any unsolicited messages, both commercially or otherwise, that result from you posting personally identifiable information or sharing User Content.
By posting or displaying any User Content via the Social Network, you represent that you are the owner of such User Content and that posting such information or User Content does not violate any privacy, publicity, or intellectual property rights of any party. In no event does Napster assume any responsibility or liability for any claims of intellectual property infringement arising out of or in connection with any User Content that you post or is displayed within the Social Network. You also understand that by participating in the Social Network, you grant Napster and its affiliates, successors, and assigns a worldwide, royalty-free, irrevocable license to use, display, reproduce, distribute, modify, or publish any of your User Content posted within the Social Network for any promotional or commercial purposes, without any obligation to make any payment to your or others or to give you credit.
(c) Community Guidelines
As a member of the Social Network community, you understand that the Social Network is a feature designed to help music lovers discover new music, share music, and make social connections with other music lovers. By participating in the Social Network, you agree to be respectful of others within the Social Network community and you agree to not post any offensive, harassing, defamatory, or abusive messages or materials that Napster, it its sole discretion, may determine to be inappropriate ("Prohibited Content"). Examples of Prohibited Content include, but are not limited to: obscenity; threats or images of violence; false, fraudulent, or misleading information; solicitations or advertisements; computer viruses; encouragement of criminal or tortuous behavior; content that infringes upon another's intellectual property rights; or libelous or defamatory statements.
Posting of any material that Napster deems, in its sole discretion, to be Prohibited Content or objectionable in any way, whether offensive to any user or deemed offensive by Napster, in Napster's sole discretion, will result in immediate termination of your user account, which may result in complete deletion of any music library or playlists you have compiled. Napster is not responsible for any loss of data resulting from termination of your account.
Although Napster reserves the right, in its sole discretion, to review, edit, restrict, remove, or otherwise approve the content posted within any user profile in the Social Network, Napster is under no obligation to monitor any user material. If you believe any posts or content within the Social Network to be inappropriate, please report abuse by clicking here
. Even if reported, you understand and acknowledge that Napster is not obligated to remove any User Content. You also understand that Napster does not endorse any views, opinions, or information posted within the Social Network and under no circumstances will Napster be liable, in any way, for any claims arising from User Content including, but not limited to, claims of fraudulent information or claims of libelous or defamatory statements.
(a) Termination By You
To cancel your subscription to any of the Services, please click here
. Once you have terminated your subscription, we will stop billing your credit card until and unless you purchase another product or Service. However, please note that there may be an early termination fee, as described in Section 2(e) above, based on your subscription. All fees paid and charges made prior to termination as provided herein are nonrefundable, including, without limitation, any advance charge or payment for the subscription term during which you terminate your subscription. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
If you are contracting as a consumer, you have the right cancel your subscription to any of the Services at any time within seven working days, beginning on the day after you registered for the Services (the “Cooling-off Period”). In this case, you will receive a full refund of the price paid for the Services in accordance with our refunds policy but will not receive any refund in respect of any permanent downloads that you have purchased. We will process the refund due to you as soon as possible and, in any case, within 30 days of the day on which you gave us notice of cancellation. However, please note that if you log into the Services or start to stream music within the Cooling-Off Period, you will no longer have a right to cancel or withdraw from your subscription. In addition, after the Cooling-off Period has elapsed you no longer have the right to cancel your subscription and/or receive a refund even if you do not subsequently log into the Services or purchase any permanent downloads.
(b) Termination By Us
You agree that Napster, in its sole discretion, with or without prior notice, may freeze or terminate your user name, password, user profile, or use of the Application and/or Service(s) (or any part thereof) if Napster believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Napster End User License Agreement
. Napster may also in its sole discretion and at any time modify or discontinue providing the Application and/or any Service, or any part thereof, with or without notice. Further, you agree that Napster shall not be liable to you or any third-party for any interference with or termination of your access to the Application and/or any Service.
Napster may terminate any Service(s) and/or this Agreement at any time by providing you with 
calendar days' prior notice in writing (including, but not limited to, by e-mail).
6. CUSTOMER SERVICE
You understand and agree that Napster is solely responsible for all customer service, help, billing and account issues related to your subscription. Neither your ISP nor any third party website through which you may have accessed any Service is responsible for customer service, help, billing and account issues related to the Services. You agree not to direct any questions, requests for assistance, or inquiries about the Application or any Service to your ISP or to any third party website through which you may have accessed the Application or any Service. For assistance, please contact Customer Service
7. YOUR ACCOUNT INFORMATION
(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the subscription process (such information being the "Account Information").
(b) Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated card by selecting "Manage My Account" from the "My Account" menu page and then clicking the appropriate link in the Manage My Account section.
(c) Our Use of Account Information
, which is expressly incorporated herein by reference.
(d) Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password and for any and all activities that occur under your account. If you believe someone has accessed any Service using your user name and password without your authorization, it is your responsibility to set up a new password by clicking on the Account Status link on the Application and selecting the appropriate link.
8. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Services using your user name and password. The Services available through the Application, and the Application itself (including, but not limited to, the Content), are the property of Napster or its licensors and are protected by copyright and other intellectual property laws. The Services provided through the Application may be used for your personal, non-commercial use only. You agree not to (i) reproduce, record, retransmit, redistribute, disseminate, sell, rent, lend, broadcast, publicly perform, adapt, sub-license or circulate the Application or any Content received through the Application or any Service (including, but not limited to, music content) to any third party, (ii) exploit any such Content or the Application for commercial purposes without the express prior written consent of Napster, or (iii) to share your password with any third party. You may not make any unauthorized copies of the Application or the Content obtained through the Services, and may only make such copies as are reasonably necessary for your personal, non-commercial use. Because the Services are designed for personal use, you are not allowed to use any automated system for the selection or streaming of files. You further agree to compensate Napster for your failure to comply with this section.
Napster and its licensors retain exclusive ownership of the Application, the Content, the Services, and all intellectual property rights associated therewith. Except as expressly provided in this Agreement, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Services, the Application or their contents. Napster and its licensors reserve all rights not expressly granted in this Agreement. You shall promptly notify Napster in writing upon your discovery of any unauthorized use or infringement of the Services (or their contents) or any patent, copyright, trade secret, trademarks or other intellectual property rights of Napster or its licensors. The Application and the Services contain proprietary information that is protected by copyright laws and international treaty provisions.
Napster expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your service immediately for your failure to comply with any such local, state or federal law.
9. COPYRIGHT INFRINGEMENT
It is Napster's policy to respect the intellectual property rights of its artists and content providers. If you are a copyright holder who believes that Napster or one of its Services is hosting or linking directly to infringing copies of your work, please let us know. Notice of alleged copyright infringement should be sent to Napster's designated copyright agent at the following address:
Napster Luxembourg S.à r.l.
60, Route de Luxembourg
A notification of claimed copyright infringement must be addressed to Napster's copyright agent listed above and include the following:
• A physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed;
• Specific identification of each copyrighted work claimed to have been infringed;
• A description of where the material believed to be infringed is located on Napster's site (e.g. hyperlink);
• Contact information for the complaining party, such as a complete name, address, telephone number, and email address;
• A statement that the complaining party honestly believes that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law;
• A statement that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
10. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
Napster will make reasonable efforts to keep your account and the Service(s) operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Napster will make reasonable efforts to notify you at least twenty-four (24) hours in advance of any anticipated downtime that will exceed one hour.
Napster also reserves the right to modify or discontinue, temporarily or permanently, functions and features of the Application and Service(s) with or without notice. Due to contractual or other limitations, from time to time, some tracks available in any particular catalog may no longer be available. Napster reserves the right to change or remove Content at any time.
Napster shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).
11. EVENTS OUTSIDE OUR CONTROL
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control (a “Force Majeure Event”).
A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following:
(a) strikes, lock-outs or other industrial action; or
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; or
(d) impossibility of the use of public or private telecommunications networks.
Our obligations under this Agreement and/or any Services are suspended for the period that the Force Majeure Event continues, and we will extend the time to perform these obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Agreement and/or any Service can be performed despite the Force Majeure Event.
12. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. WHILST NAPSTER WILL PROVIDE THE SUBSCRIPTION SERVICE WITH REASONABLE CARE AND SKILL, NAPSTER AND ITS LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, 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.
NAPSTER MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES NAPSTER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. EXCEPT INSOFAR AS NAPSTER WARRANTS THAT IT WILL PROVIDE THE SERVICES WITH REASONABLE CARE AND SKILL, NAPSTER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
13. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL NAPSTER OR ITS PARENTS, MEMBERS, LICENSORS, SUBSIDIARIES, PARTNERS, AFFILIATES, SERVICE PROVIDERS, INVESTORS, SYNDICATORS, DISTRIBUTORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES (COLLECTIVELY THE "PROTECTED PARTIES") BE LIABLE FOR ANY BUSINESS LOSSES OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER BUSINESS LOSSES) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF NAPSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL ANY PROTECTED PARTY BE LIABLE FOR ANY DAMAGES IN EXCESS OF 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.
NAPSTER'S LICENSORS AND SAMSUNG ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT, AND SHALL HAVE THE RIGHT TO ENFORCE THIS AGREEMENT AGAINST YOU.
14. MODIFICATION OF SUBSCRIPTION AGREEMENT
Napster may modify this Agreement at any time in its sole discretion. If any modification is unacceptable to you, you agree that your only recourse is to terminate your use of any of the Service(s) as provided herein. Your continued use of any Service following our posting of a change of terms use, an email notice to you, or a new Agreement on the Application will constitute your binding acceptance of the change, until such time as you terminate your subscription.
15. COMPENSATION BY YOU
You agree to compensate the Protected Parties from any claim or demand, including, without limitation, reasonable attorneys' fees, made by any third party due to, or arising out of or related to any content or information that you post or display on your Social Network user profile, your violation of this Agreement, or your violation of any law, regulation or third-party right.
16. 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, Wales, Scotland and Northern Ireland 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.
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.
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 assigns. Napster may assign this agreement as it deems appropriate for any reason at any time. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void.
This Agreement (including, without limitation, all documents expressly incorporated herein by reference, including, without limitation, but not limited to the Napster End User License Agreement
) 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.
A person who is not party to this Agreement shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
Last modified: February 22, 2012