Last modified: June 2014
By enrolling into the Service according to section 1 and clicking the "order with obligation to pay" button, or by using any services, 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, and that you are over the age of eighteen. This Agreement sets forth your rights and obligations with respect to your use of the Service(s) that you have selected, and your use of and access to any service provided by Napster through the Service or the Application, including without limitation any use and updates to your user profile. As used herein, "Service(s)" includes any version of the Napster streaming services, the social network, or any other service(s) provided by Napster through the Napster subscription service or the Application - including without limitation beta versions. If you do not agree to the terms of this Agreement, you should stop the registration process and not click "order with obligation to pay."
This Agreement is in addition to, and not in lieu of, the End User Licence Agreement to which you must also agree in order to download the Napster Application ("Application" means the "Software" and "Content" as defined in the End User Licence Agreement). By enrolling into the Service according to section 1 and clicking the "order with obligation to pay" button, you not only agree to the terms set forth herein, but you affirm your consent to the End User Licence Agreement. The End User Licence Agreement is hereby incorporated by reference hereto and made a part of this Agreement.
Occasionally we may offer the chance to participate in sweepstakes, contests, surveys and special offerings (“Special Promotions”) through the Services. Special Promotions may be governed by terms and conditions that are separate from this Agreement. If the provisions of a Special Promotion’s terms and conditions conflict with this Agreement, those separate terms and conditions shall prevail.
1. ENROLMENT 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 subscription 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. Napster may voluntarily offer you the option to participate in the Social Network (defined below), whereby users can collaborate and share listening preferences and playlists from their individual profiles. If Napster decides to provide you access to the Social Network, there will be no obligation for you to pay additional fees to Napster. However, Napster will reserve the right to cease offering the Social Network feature at its discretion.
In order to access your Service(s), you must complete the registration process as described in the following paragraph, have downloaded the Application (if required), possess the hardware and software required by the Application, and be connected to the Internet.
By subscribing to or accessing any Service, you are representing to us that you are authorized to use the payment method, such as a credit card you submit for payment (if any) and that you reside in the Member State of the European Union from which you subscribe to or access the Service.
2. INFORMATION ON THE RIGHT OF WITHDRAWAL
(a) Right of withdrawal
You have the right to withdraw from this contract within 14 days without giving any reason. The withdrawal period will expire after 14 days from the day of the conclusion of the contract.
To exercise the right of withdrawal, you must inform us
Napster Luxembourg S.à r.l.
60, route de Luxembourg,
of your decision to withdraw from this contract by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the attached model withdrawal form, but it is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.
(b) Effects of withdrawal
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.
If you requested to begin the performance of services during the withdrawal period, you shall pay us an amount which is in proportion to what has been provided until you have communicated us your withdrawal from this contract, in comparison with the full coverage of the contract.
(c) Model withdrawal form
(complete and return this form only if you wish to withdraw from the contract)
Napster Luxembourg S.à r.l.
60, route de Luxembourg,
I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/for the provision of the following service (*),
Ordered on (*)/received on (*),
Name of consumer(s),
Address of consumer(s),
Signature of consumer(s) (only if this form is notified on paper),
3. TERM, FEES, TERMINATION AND PAYMENTS
Applicable fees for Services include, without limitation, a periodic (e.g., monthly, quarterly or annual) subscription fee based on the particular Service requested and taxes.
(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 and the applicable period will be displayed to you prior to your registration. 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 the payment method selected by you, such as your credit card will not be charged for your use of the Service. 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. Should two customers use the same mean of payment to subscribe to Napster, only the first customer is eligible to receive a Free Trial.
(b) Initial Subscription Payment
By registering for one of the Services, you agree that if you do not cancel your subscription before the expiration of your Free Trial, you will pay the applicable fees for the Service that you select upon registration. If you do not cancel your subscription prior to the expiration of the Free Trial, we will charge your payment method such as your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees will automatically be charged to the payment method (such as a credit card) you designated as the payment method to be billed for your account.
You may cancel your subscription at any time. Please see the “Termination” section below for further details.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription or unless otherwise stated during the registration process, your subscription will automatically renew at the end of each subscription term. Napster may offer different subscription terms (e.g. one month, one quarter, annual subscription etc.). Your renewed subscription will have the same duration as the subscription being renewed. At the time of renewal, your payment method such as your credit card will be charged our then-current fees for the applicable subscription. If you wish to elect not to renew or terminate your subscription, please log-in to My Account and then either follow the cancellation links or contact Customer Service and ask for a representative to assist you to cancel your subscription. Please see section 3 (e) (i) for further information.
If you are a French resident, please note that the following article L. 136-1 of the French Consumer Protection Code applies to you:
"Le professionnel prestataire de services informe le consommateur par écrit, par lettre nominative ou courrier électronique dédiés, au plus tôt trois mois et au plus tard un mois avant le terme de la période autorisant le rejet de la reconduction, de la possibilité de ne pas reconduire le contrat qu'il a conclu avec une clause de reconduction tacite. Cette information, délivrée dans des termes clairs et compréhensibles, mentionne, dans un encadré apparent, la date limite de résiliation.
Lorsque cette information ne lui a pas été adressée conformément aux dispositions du premier alinéa, le consommateur peut mettre gratuitement un terme au contrat, à tout moment à compter de la date de reconduction. Les avances effectuées après la dernière date de reconduction ou, s'agissant des contrats à durée indéterminée, après la date de transformation du contrat initial à durée déterminée, sont dans ce cas remboursées dans un délai de trente jours à compter de la date de résiliation, déduction faite des sommes correspondant, jusqu'à celle-ci, à l'exécution du contrat. A défaut de remboursement dans les conditions prévues ci-dessus, les sommes dues sont productives d'intérêts au taux légal.
Les dispositions du présent article s'appliquent sans préjudice de celles qui soumettent légalement certains contrats à des règles particulières en ce qui concerne l'information du consommateur.
Les trois alinéas précédents ne sont pas applicables aux exploitants des services d'eau potable et d'assainissement. Ils sont applicables aux consommateurs et aux non-professionnels.”
(d) Your Billing Date
Your payment method (such as 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. If your Service is billed through a mobile carrier, please refer to your payment terms with such mobile carrier to determine the Billing Date.
You and Napster may cancel your subscription at any time prior to the end of each subscription term.
i. Termination By You
To cancel your subscription for any of the Services you can log-in to My Account and then either follow the cancellation links or contact Customer Service and ask for a representative to assist you to cancel your subscription. Your subscription and your obligation to pay to Napster the fees for the Services will not end until the end of your subscription term (although you will be entitled to a refund of some or all of your paid advance charges or payments if you terminate due to Napster’s breach of this Agreement, serious malfunction, prolonged suspension of the Service, modification of prices or other terms of this Agreement by Napster, or if required by mandatory applicable laws. Following termination, your subscription ends at the end of your subscription term and Napster stops billing your payment method such as your credit card unless and until the reactivation of your subscription with Napster or the purchase another product or Service.
Notwithstanding the foregoing, Napster may, at its sole discretion, offer you an early termination against an early termination fee, as described in the following paragraph, based on the terms of your subscription.
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 but excluding your termination due to Napster’s breach of this Agreement, serious malfunction, prolonged suspension of the Service, modification of prices or other terms of this Agreement by Napster, or if required by mandatory applicable laws ), the portion of the price stated at the time of registration, which corresponds to the remaining of the committed period of time may be charged to you as early termination fee as compensation for Napster's losses resulting from your early termination. If you are a resident of Denmark, this paragraph does not apply to you.
ii. 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 has evidence that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Napster End User Licence Agreement. Napster expressly reserves the right to terminate your service immediately if Napster has evidence that you fail to comply with any applicable local, state or federal law, in particular, but not limited to, copyright infringement. 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 prior notice (although you will be entitled to a refund of some or all of your paid advance charges or payments for Applications and/or Services that you do not receive as a result of such modification or discontinuation). Upon termination by us without prior notice, we will promptly send you a notice to your registered email. Finally, you agree that Napster, in its sole discretion, with 15-day prior notice, at any time, may terminate for convenience, with or without reason, your subscription (you will be entitled to a refund of some or all of your paid advance charges or payments for Applications and/or Services that you do not receive as a result of such termination. Further, except for refunds of advance charges or payments as set out in this section 3(e)(ii), 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.
(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) 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, if Napster terminates your account, if you terminate your subscription due to serious malfunction or prolonged suspension of the Service, if you terminate your subscription following modification of prices or other terms of this Agreement by Napster, or if required by mandatory applicable laws). Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(h) Methods of Payment and Credit Card Terms
Napster may offer payment via PayPal, Visa, Visa Delta, Visa Electron, MasterCard/Eurocard, American Express, Maestro/Solo card, direct debit or cell phone carrier billing (if available). We do not accept cash, cheques or any other payment form. Napster further reserves the right not to offer a specific payment method in the individual case. 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. If you elect to sign up to any of the Services through a mobile carrier, you elect to be billed by such mobile carrier for your subscription fee to the Service(s).
(i) Late Payments
Your account may be deactivated if payment is past due, regardless of the amount of money that you owe, and you fail to pay within 5 days of our sending of an email to you at the email address you provided at registration. 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.
(k) 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.
i. Changes To Subscription Fees
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 at least thirty (30) days’ 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 and Napster will refund some or all of your paid advance charges or payments for Applications and/or Services that you do not receive as a result of the termination of your subscription under this section 3(l)(i). 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.
ii. Material Changes To this Agreement, the Application or Service(s)
Your acceptance of this Agreement means that you give consent to Napster to email you with notices concerning a material change in the terms of this Agreement, the Application or Service(s) you use. If any such change is unacceptable to you, you may terminate your subscription by contacting customer service and Napster will refund some or all of your paid advance charges or payments for Applications and/or Services that you do not receive as a result of the termination of your subscription under this section 3(l)(ii). 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.
4. COMPATIBLE DEVICES
The Service can be accessed with a Windows or Mac OS X compatible computer (PC).
Napster may also offer you subscription types that include access to the Service through certain Mobile Devices. A Mobile Device is a device that uses the Android operating system, or an iPhone®, iPad® and iPod Touch®, a Windows phone, an Internet-connected TV, a set-top box, a home audio device, an automotive entertainment system and various other so-called mobile devices, provided that they are compatible with Napster.
5. SOCIAL NETWORK
Napster, voluntarily and free of additional charges, may offer you 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 Services you automatically are entitled to access the Social Network.
(a) Customizing Your User Profile
As a standard, your user profile is hidden to other members of the Social Network. You may choose whether to use the Social Network feature by making your profile public and creating social connections with other users. 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 display any personally identifiable information, nor will any playlists you have created be shown in your profile. 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.
To customize your profile, you must go to Napster’s website, log in, 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.
(b) Information You Post Within the Social Network
By posting or displaying any User Content via the Social Network, you represent that posting such User Content does not violate any privacy, publicity, or intellectual property rights of any party. Between you and Napster, Napster does not assume any responsibility or liability for any third party claims, in particular 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 a non exclusive, assignable, worldwide, royalty-free, license to use, display, reproduce, distribute, or publish any of your User Content posted as part of your profile within the Social Network, without any obligation to make any payment to your or others or to give you credit. The licence grant applies as long as you publish the content in the Social Network and such content is not, either by you or, upon your request, by Napster, deleted or blocked, it being understood that Napster will be allowed reasonable notice for complying with such request by you.
(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 reasonable 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.
Although Napster reserves the right, in its reasonable discretion, to review and remove 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.
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 payment method such as your credit card to be billed, or change the applicable expiration date on your currently designated credit 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
(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 and by technical means against unauthorized uses. 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, make available, communicate to the public, 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.
9. COPYRIGHT INFRINGEMENT
It is Napster's policy to respect the intellectual property rights of its artists and content providers. If you believe 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: Legal Counsel
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 (although you will be entitled to a refund of some or all of your paid advance charges or payments for functions and features that you are unable to use as a result of such modification or discontinuation). 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.
11. WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
(a) Disclaimer of Warranty
To the extent permitted by applicable law, the Application and Service are provided "as is" and "as available" without any representation or warranty of any kind, express or implied, as to the Application and Service or their operation. Whilst Napster will provide the Service and Application 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 or Service will meet your requirements, or that the Application or Service 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 and Service, or as to the accuracy or reliability of any content obtained through the Application or Service. Except insofar as Napster warrants that it will provide the Application and Service with reasonable care and skill, Napster makes no warranty regarding any goods or services purchased or obtained through the Application or Service or any transactions entered into through the Application or Service.
Napster makes no warranty that any particular hardware will be compatible with Napster's Application or Service. It is solely your responsibility during your Free Trial to ensure that your playback system(s) will function correctly with the Application or Service.
To the extent permitted by applicable laws, 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).
(b) 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:
(i) strikes, lock-outs or other industrial action; or
(ii) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or
(iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; or
(iv) 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.
(c) Limitation of Liability
This section shall apply to the extent permitted by applicable laws The entire risk arising out of the use and/or performance of the Application or Service(s) remains with you. To the extent permitted by applicable law, 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") shall not 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 Application or 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 applicable law. In no event (to the extent permitted by applicable law) 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 Service(s) or the specific item of content giving rise to the applicable claim for damages.
(d) Your responsibility
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, in particular, but not limited to, copyright infringement.
If you are a parent or guardian paying on behalf of a minor or other person subscribing to the Service, 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.
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).
12. MODIFICATION OF SUBSCRIPTION AGREEMENT
Napster may modify this Agreement at any time in its sole discretion (where applicable, Napster shall provide at least thirty (30) days’ prior notice). If any modification is unacceptable to you, you agree that your only recourse is to terminate your use of any of the Applications and/or Service(s) as provided herein (although you will be entitled to a refund of some or all of your paid advance charges or payments for Applications and/or Services that you do not receive as a result of the termination of your subscription under this section 12). 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.
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. 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).
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. You can read more about the conditions for complaining and guidance as to how to submit complaints to the Consumer Complaints Board on the board‘s website, www.forbrug.dk.
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.
Except as expressly stated in this Agreement, a person who is not party to this Agreement shall not have any rights under or in connection with it.
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.