June 30, 2006
NAPSTER END-USER LICENSE AGREEMENT
IMPORTANT - PLEASE READ THE FOLLOWING END-USER LICENSE AGREEMENT, AS WELL AS THE NAPSTER SUBSCRIPTION SERVICE AND MUSIC STORE TERM= S OF USE THAT ARE IMMEDIATELY BELO= W IT CAREFULLY BEFORE CONTINUING THE INSTALLATION OR FIRST USE AND ACTIVATION OF THIS SOFTWARE:
This license agreement (“License Agreement”= ;) is a legal agreement between you and Napster, LLC (“Napster”). You are installing and/or accessin= g and activating pre-installed software and associated materials and documentation that have been created by or for Napster or its suppliers or licensors (collectively the “Software”).= You understand that the software includes security components that permit digital information to be protected and use to occur only as permitt= ed by usage rules set by Napster and/or content providers. As such, certain special considera= tions apply. By installing, copying= , or otherwise using the Software, and by accepting any Software updates from ti= me to time, you acknowledge that you have read and understood this License Agreement, and agree to be bound by its terms and conditions. If you do not agree to (or cannot = comply with) the terms and conditions of this License Agreement, do not install, c= opy, and/or use the Software or any Content (as described below).
NOTICE: = Napster may from time to time amend, modify, or supplement this License Agreement a= s it pertains to the Software and Content by posting a copy of such amended, modified, or supplemented license agreement at http://www.Napster.com/eula.= html. Please check that webpage regularly for revisions to this License Agreement. You may provide notice to Napster = of any objection to such revised terms within thirty (30) days after they are post= ed; please send any such objection by email to support@napster.com. You will be deemed to have accepte= d the amended, modified, or supplemented terms if you thereafter use the Software= or Content. All other terms of t= his License Agreement will continue in effect except as provided in paragraph 11 below.
1. &n= bsp; License to Use Software. Subject to t= he terms and conditions hereof, Napster hereby grants you a limited, nonexclus= ive, nontransferable, nonsublicensable right to use = the Software, as such software has been delivered to you, on a single computer solely as an end user.
2. &n= bsp; Updates, Security, and Revocation. Bec= ause the Software includes security components, special rules and policies apply. You agree to abide by = the rules and policies established from time to time by Napster. Such rules and policies will be ap= plied generally in a nondiscriminatory manner to users of the Software, and may include, for example, required or automated updates, modifications, and/or reinstallations of the Software to address security, interoperability, and/= or performance issues. To this e= nd, the Software includes an auto-individualization feature that automatically collects unique system identification information about your computer and m= ay be remotely activated in order to update security components used by the Windows Media Player. These updates, modifications and the like may occur on a periodic or as needed ba= sis without notice to you. In add= ition, you understand that the Software is capable of monitoring itself for security-related and tamper-detection purposes and communicating information about security incidents. You= r copy of the Software and your access to certain applications that communicate wi= th it are subject to restriction and/or revocation (such as being shut down) f= or security purposes or according to consistently applied Content-protection policies. You understand and = agree that this would likely result in Content that was previously available for = use being unavailable thereafter.
3. &n= bsp; Activation and Privacy Information. By installing the Software and activating it, you consent to the collection and processing of information you are requested to provide during the registration and installation process. All of this information is collect= ed by Napster and handled pursuant to the terms of the Napster Privacy Policy, a = copy of which is located at http://www.Napster.com/privacypolicy.html.
4. &n= bsp; Restrictions.
(a) &= nbsp; The Software contains and/or embodies copyrighted material, trade secrets, pate= nted (and/or patent pending) inventions and/or other proprietary material and intellectual property of Napster and/or its licensors. All title and ownership rights in = the Software remains with Napster and its licensors,= as applicable.
(b) &= nbsp; In addition to those prohibitions contained elsewhere herein, you agree you wi= ll not: (i<= /span>) rent, lease, loan, sell, copy, or distribute the Software in whole or in pa= rt; (ii) use the Software or any portion thereof to create any tool or software product that can be used to create software applications of any nature what= soever; (iii) remove, alter, cover, obfuscate, and/or otherwise deface any trademar= ks or notices on the Software; and/or (iv) modify, alter, decompile, disassemb= le, reverse engineer or emulate the functionality, reverse compile or otherwise reduce to human readable form, or create derivative works of the Software without the prior written consent of Napster or its licensors, as applicabl= e;
(c) &= nbsp; You further agree that you shall not tamper with the Software or undertake any activity intended to bypass, modify, defeat or otherwise circumvent (or hav= ing the effect of facilitating, modifying, or assisting the bypassing, defeatin= g or circumventing of) proper and/or secure operation of the Software and/or any mechanisms operatively linked to the Software; and
(d) &= nbsp; Except as expressly provided by this License Agreement, no other licenses or rights (including rights to maintenance or updates) are granted, expressly, or by implication or estoppel. All rights not expressly granted h= erein are reserved to Napster and/or its licensors, as applicable.
5. &n= bsp; Authorized Use of Napster Content. The Software may enable you to listen to, view, and/or read (as the case may be) music, images, video, text, and other material that may be obtained by or w= ere in some instances, previously provided to you in digital form. This material, collectively “= ;Content,” may be owned by Napster or by third parties. However, in all circumstances, you understand and acknowledge that your rights with respect to Content you obt= ain for use in connection with the Software (including any Content that may have been preloaded with the Software, to your computer, portable device or a CD= or other media provided to you) will be limited by copyright law and by the Us= age Rules, as described in the Terms and Conditions of the Napster service, with which authorized copies of the Content are electronically packaged. A copy of the Napster Terms and Conditions, with which you must agree to use the Napster service, is locate= d at http://www.Napster.com/terms.html. <= /span>“Usage Rules” are the licensing rules assigned by Napster and/or the pertine= nt Content owner to Content that limit your access to and use of it. Unauthorized copies of Content (including pirate and other illegal copies) may be electronically packaged = with incorrect rules that have not been approved by Napster and/or the Content owner. The Usage Rules approv= ed by Napster and/or the pertinent Content owner in respect of Content shall gove= rn your rights with respect to that Content regardless of whether unauthorized rules have been associated with that Content by another party. The supply of this product does not convey a license nor imply any right to commercially distribute content cre= ated or accessed with this product in revenue-generating broadcast systems (terr= estrial, satellite, cable and/or other distribution channels), streaming applications (via Internet, intranets and/or other networks), other content distribution systems (pay-audio or audio-on-demand applications and the like) or on phys= ical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). You may not attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alte= r or interfere with any Usage Rules or Content.
&nbs= p; The Software enables Napster to control your access to Content in accordance wi= th the Usage Rules. Napster (for itself and its Content licensors) reserves the right to use the Software at= any time to enforce the Usage Rules with or without notice to you.
6. &n= bsp; Customer Care. Napster will provide cu= stomer care in connection with the Napster service and the Software as set forth in the Napster Terms and Conditions. Information and frequently asked questions regarding Napster Content= and the Software are always available within the Napster service under the R= 20;Help” tab or you can contact our Customer Support personnel by sending an email to support@Napster.com.
7. &n= bsp; Remedies. You acknowledge and agree that any unauthorized use of the Software and/or the technology contained in it would result in irreparable injury to Napster or its licensors, as applicable, for which money damages would be inadequate, and in such event Napster shall ha= ve the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use. Nothing contained in this paragrap= h 7 or elsewhere in this License Agreement shall be construed to limit remedies or relief available pursuant to statutory or other law that Napster or its licensors may have under separate legal authority.
8. &n= bsp; Warranties. You expressly acknowledge and agre= e that the use of the Software is at your own sole risk. THE SOFTWARE HAS BEEN PROVIDED SOL= ELY, “AS IS” AND WITHOUT WARRANTY OF ANY KIND BY NAPSTER, ITS DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AGENTS (COLLECTIVELY “NAPSTER̶= 1;); ITS LICENSORS; OR ITS BUSINESS PARTNERS (“PARTNERS”). TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NAPSTER AND ITS LICENSORS AND PARTNERS EXPRESSLY DISCLAIM A= LL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NONINFRINGEMENT. = THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION THEREOF WILL = BE UNINTERRUPTED OR ERROR-FREE. NAPSTER AND ITS LICENSORS AND PARTNERS DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO NAPSTER AND/OR ANY OF I= TS LICENSORS OR PARTNERS. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS AND THUS, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. &n= bsp; Further Limitation of Liability. In addition to the other provisions hereof, YOU ACKNOWLEDGE TO AND FOR THE BEN= EFIT OF NAPSTER AND ITS LICENSORS AND PARTNERS THAT THE SOFTWARE, AS WITH MOST SOFTWARE, MAY CONTAIN BUGS AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZAR= DOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. NAPSTER AND ITS LICEN= SORS AND PARTNERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS SUFFERED AS A RESULT OF SUCH A FAILURE OF THE SOFTWARE OR A BREACH OF SECURITY INVOLVING = THE SOFTWARE, WHETHER OR NOT SUCH LOSS OR BREACH RESULTS FROM THE DELIBERATE, RECKLESS, OR NEGLIGENT ACTS OF ANY PERSON.
UNDER NO CIRCUMSTANCES SHALL NAPSTER OR ITS LICENSORS = OR PARTNERS BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY CONTENT, OR ANY USE OF T= HE SOFTWARE TO DEVELOP, DISTRIBUTE, OR USE ANY MATERIAL THAT IS DEFAMATORY, SLANDEROUS, LIBELOUS OR OBSCENE, THAT PORTRAYS ANY PERSON IN A FALSE LIGHT, THAT CONSTITUTES AN INVASION OF ANY RIGHT TO PRIVACY OR AN INFRINGEMENT OF = ANY RIGHT TO PUBLICITY, THAT VIOLATES OR INFRINGES ANY THIRD PARTY’S RIGH= TS OR THAT VIOLATES ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION= .
IN NO EVENT WILL NAPSTER OR ITS LICENSORS OR PARTNERS = BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMA= GES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF NAPSTER AND/OR ITS LICENSORS AND PARTNERS HAVE BEEN ADVIS= ED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION = OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY= NOT APPLY TO YOU. TO THE EXTENT AS APPLIED IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGE= S OR LIABILITY SET FORTH HEREIN IS WHOLLY PROHIBITED BY APPLICABLE LAW, THEN NAP= STER AND ITS LICENSORS AND PARTNERS SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE. NOTWITHSTANDING ANY CONTRARY PROVI= SIONS, IN NO EVENT SHALL NAPSTER’S LIABILITY TO YOU OR ANY PERSON EXCEED, IN= THE AGGREGATE, US$10.
10. &= nbsp; Term. Napster may terminate this License Agreement at any time with or without notice. (Napster will only terminate the N= apster service to you pursuant to the terms of the Napster Terms and Conditions).<= span style=3D'mso-spacerun:yes'> This License Agreement is subject = to immediate termination, without notice, if you breach any provision hereof; provided that if such termination without notice is expressly prohibited by applicable law, then such termination shall occur based upon notice in the event of any breach. Upon not= ice from Napster that this License Agreement has been terminated, you must retu= rn to Napster (or destroy) all copies of the Software, including any copies or partial copies.
11. &= nbsp; Survival. The respective rights and obligati= ons of you and Napster under the provisions of paragraphs 2, 3, 4, 5, 7, 8, 9, 12,= 13 and this paragraph 11 shall survive termination of this License Agreement.<= /p>
12. =
13. &= nbsp; Miscellaneous Provisions.
(a) &= nbsp; Any actions arising out of or in any manner affecting the interpretation of thi= s License Agreement as they pertain to the Software or Content, whether under this License Agreement or otherwise shall be governed solely by, and construed solely in accordance with, the laws of the United States and State of New Y= ork, excluding (i) conflict of laws principles; (ii)= the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sal= e of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna A= pril 11, 1980. To the extent permi= tted by law, the provisions of this License Agreement shall supersede any provis= ions of the Uniform Commercial Code and the Uniform Computer Information Transactions Act as adopted or made applicable to the Software in any compe= tent jurisdiction. As to any dispu= te, you hereby unconditionally and irrevocably consent to the exclusive jurisdiction of and venue in, as relevant, the state courts of the State of= New York and the U.S. District Court for the Southern District of New York (in = New York, New York) and irrevocably: (i) waive any objection whatsoever (including any objection with respect to venue) that y= ou may now or hereafter have to the jurisdiction or venue of said courts; and = (ii) consent to the service of process of said courts by the mailing of process = by registered or certified mail to you, postage prepaid;
(b) &= nbsp; If for any reason a court of competent jurisdiction finds any provision or por= tion of this License Agreement to be unenforceable, such provision or portion sh= all be enforced to the maximum extent permissible consistent with the terms her= eof, and the remainder of this License Agreement shall continue in full force and effect; and
(c) &= nbsp; Except as expressly set forth herein, this License Agreement may not be amended, modified, or supplemented by the parties in any manner, except by a written instrument signed by an authorized officer of Napster. No provision hereof shall be deemed waived (by any act or omission) unless such waiver is in a writing signed b= y an authorized officer of Napster. This License Agreement will bind and inure to the benefit of each party’s successors and assigns, provided that you may not assign or transfer this License Agreement, in whole or in part, without the prior written consent o= f an authorized officer of Napster. This License Agreement represents the entire agreement between you and Napster w= ith respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, written or oral, between you= and Napster with respect to the subject matter hereof.
14. &=
nbsp; Intellectual
Property Notices. The Softwar=
e is
Copyright 2001-2006 Napster, LLC and its lic=
ensors. All rights reserved.
15. &= nbsp; Third Party Notices. You acknowledg= e and understand that certain software modules of the Software may contain third party technology. The followi= ng describes such third party technology and your rights and licenses therein.
(a) = The Software contains an XML parser and a DRM upgrade executable as well as components related to portable device integration, the copyrights in which = are owned by Microsoft Corp.; you may use them solely in connection with your u= se of the Software as permitted herein. The Software contains certain “zlib” components related to compression of XML transactions. The Software contains the Blowfish= block cipher, part of the Python Cryptography Toolkit, version 1.0.0, 1995 A.M. Kuchling; you may use it solely in connection with your use of the Software as permitted herein, unless you receive further authorization directly from the author of it. The Software contains a CD burning module the copyrights in which are owned by Roxio, Inc.; you may use it solely in connection with your use of the Software as permitted herein. The Software also contains certain components related to integration with certa= in portable devices, the copyrights in which are owned by Samsung Electronics = or are otherwise provided under license from Samsung Electronics; you may use these components only as provided herein.
(b) =
Gracenote Database/Data. The Software contains software fro=
m a licensor
of Napster, CDDB, Inc. of Berkeley, California d/b/a G=
racenote
(“Gracenote”). The software from
You agree that You will use Grace= note Data, the Gracenote CDDB2 Client, and Gracenote CDDB Servers for Your own personal non-comm= ercial use only. You agree not to assign, copy, transfer or transmit the Gracenote CDDB2 Client or any Gr= acenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE CDDB2 CLIENT, OR GRACENOTE CDDB SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN.
You agree that your non-exclusive license to use the <= span class=3DSpellE>Gracenote Data, the Gracenote CDDB2 Client, and Gracenote CDDB 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 CDDB2 Client, and Gracenote CDDB Servers. Gracenote reserves all rights in = Gracenote Data, the Gracenote CDDB2 Client, and the Gracenote CDDB Servers, including all ownership rights. You agree that CDDB, Inc. may enforce its rights under this Agreement against you directly in its own name.
The Gracenote CDDB2 Client= and each item of Gracenote Data are licensed to you= “AS IS.” Neither Gracenote nor Napster makes any representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Grace= note CDDB Servers. Gracenote reserves the right to delete data from the Gracenote CDDB Servers or to change data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote CDDB2 Client or Gracen= ote CDDB Servers are error-free or that functioning of Gra= cenote CDDB2 Client or Gracenote CDDB Servers will be uninterrupted. Gracenote is not obligated to provide you with any new enhanced or additional data ty= pes or categories that Gracenote may choose to prov= ide in the future and is free to discontinue its online services at any time.
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 CDDB2 Client or any Gr= acenote CDDB Server. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY = LOST PROFITS OR LOST REVENUES.
(c) &= nbsp; MP3 and MP3Pro Codecs. Supply of this product does = not convey a license nor imply any right to distribute content created with this product in revenue-generating broadcast systems (terrestrial, satellite, ca= ble and/or other networks), streaming applications (via Internet, intranets, an= d/or other networks) other content distributions systems (pay-audio or audio-on demand applications and the like) or on physical media (compact discs, digi= tal versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent License= for such use is required. For det= ails please visit http://mp3licensing.com.
16. &= nbsp; Customer Contacts. If you have any que= stions regarding this License Agreement, or if you would like to contact Napster f= or any other reason, write to Napster, 9044 Melrose Avenue, Los Angeles, CA 90= 069, Attn: General Counsel; or send an email to support@Napster.com. ¬¬¬¬¬¬¬= ;¬¬¬¬¬¬¬¬¬¬
NAPSTER SUBSCRIPTION SERVICE AND MUSIC STORE TERMS AND CONDITIONS
Effective June 1, 2006
This document (the "Agreement") is a legal contract between you and Napster, LLC ("Napster") that governs yo= ur use of Napster's online music services (the Napster subscription services,<= span style=3D'mso-spacerun:yes'> the "Napster Light" down= load sales service and/or any of the XM + Napster services) available at www.napster.com (together the "Service"). The terms below will ap= ply to you if you register for and use the "Napster Light" download s= ales service (that is free to access). If you register for Napster's subscription service (the "Subscription Service"), all terms in the section be= low headed “*Subscription Service Addendum” will also apply. Finally, if you register for any o= f the XM + Napster services, all terms in the section below headed “**XM + Napster” will also apply.
NOTICE
Napster may from time to time modify these terms and p= ost a copy of the amended Agreement at http://www.napster.com/terms.html. If you = do not agree to (or cannot comply with) the Agreement as amended, your only re= medy is to stop using the Service or, if applicable, cancel your Subscription Service subscription. You will be deemed to have accepted the Agreement as amended if you continue to use the Service after any amendments are posted.=
AGE REQUIREMENT
You must be at least 18 years of age to agree to and e= nter into this Agreement on your own behalf and to register for use of the Servi= ce. If you are under 18 but at least 13 years of age, you must present this Agreem= ent to your parent or legal guardian, and he or she must check the box below to enter into this Agreement on your behalf. Children under the age of 13 may = not register for this Service, and parents or legal guardians may not register = on their behalf. By checking the box indicating your acceptance to this Agreem= ent, you represent that (i) you have read, understoo= d and agree to be bound by this Agreement and (ii) you are at least 18 years old, either entering into this Agreement for yourself or entering on behalf of y= our child or a child in your legal care. If you are a parent or guardian enteri= ng this Agreement for the benefit of your child, please be aware that you are fully responsible for his or her use of the Service, including all financial charges and legal liability that he or she may incur. If you do not agree to (or cannot comply with) any of these terms and conditions, do not check the acceptance box and do not attempt to access the Service.
DESCRIPTION OF SERVICE
The Service allows you to listen to Samples (as defined below) and obtain downloads of sound recordings ("Tracks") and related digital content ("Materials"). To access the Service, you will need to install or activate Napster's proprietary software application; from time to time, you may also be required to install other software made available through the Service (collectively this software is called the "Client"). You may also need to install certain third-party softw= are. You are responsible for any hardware, systems and/or software program(s) you use and any associated fees and expenses (a) to connect to or use the Inter= net, and/or (b) other than the Client, to use any Materials. The Service, the Tr= acks and/or the Materials (including any Napster promotional offers or codes redeemable for the Service, the Tracks and/or the Materials) are only for y= our personal, non-commercial use and are non-transferable (except as otherwise expressly authorized by Napster).
REGISTRATION
To use the Service, you must register and provide cert= ain information, including a member (user) name, a password and a valid email address ("Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep= it accurate. Napster will use your Registration Data in accordance with its privacy policy, which you can review at http://www.napster.com/privacypolicy.html.
You agree that you will not allow others to use your m= ember name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Napst= er immediately of any unauthorized use of your password and/or account. Napster shall not be responsible for any losses arising out of the unauthorized use= of your member name, password and/or account and you agree to indemnify and ho= ld harmless Napster, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal = uses of the same.
USE OF SERVICE, SOFTWARE, TRACKS AND MATERIALS
Software. The Client, and all other software made avai= lable by Napster on or through the Service, are protected by intellectual property laws and your use of them is governed by this Agreement as well as any applicable end-user license agreements. A copy of the current Client End-Us= er License Agreement ("Napster EULA") is available at http://www.napster.com/eula.html.
Tracks and Materials. The Tracks and Materials are own= ed by Napster, its business partners, affiliates and/or licensors, as applicable,= and are protected by intellectual property laws. You agree that the content rig= hts holders that license their musical or other content to Napster for use in t= he Service are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern their content. You understand that your use of the Tracks and Materials is subject to the Usage Rules discussed below. You may not authorize, encourage or allow any Tracks= or Materials used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by anyone else. You a= gree to advise Napster promptly of any such unauthorized use(s).
Usage Rules. Your access to and/or use of any Track(s)= will be limited by the rules assigned to the Track(s) by Napster ("Usage Rules") and described in this section. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, or otherwise al= ter or interfere with any Usage Rules or Tracks. Napster reserves the rights to modify the Usage Rules at any time.
A "Sample" is a portion of a Track or, in so= me cases, an entire Track or promotional music video that you can play (and, if applicable, view) directly from and while you are logged on to the Service = on a promotional basis at no cost to you. You may play as many Samples as you li= ke. You may not attempt (or support others' attempts) to capture, copy, or down= load a Sample.
A "Purchased Track" is a Track that you may = (1) save to the hard drives of up to three (3) of your personal computers and p= lay back at any time, (2) burn to a CD and/or (3) transfer to a compatible port= able device. Any security technology that is provided with a Purchased Track is = an inseparable part of it. If you have Purchased Tracks, it is your responsibi= lity not to lose, destroy or damage them. Napster shall have no liability to you= in the event of any such loss, destruction, or damage. You may purchase Tracks= on an individual basis and you may also be offered the ability to purchase Tra= cks in groups (called "Track Packs"), sometimes at discounted pricing= . If you purchase a Track Pack, your account will be credited for the number of Tracks that were included and you will then be able to use those credits towards future Track purchases but only for up to one year from the time th= at you purchased the Track Pack.
If you have received a valid promotional code or gift certificate for Napster, you should follow the instructions that you receiv= ed with such promotion to redeem that code or gift. If you have properly input= ted a valid promotional offer, your account will be credited for the applicable amount of Tracks (or, to access the applicable Subscription Service membership). Napster promotional offers and gift are certificates subject to any expiration dates that may be messaged with the offer and are not redeem= able for cash (and any unused portion may not be returned for cash or any other value). In addition, as with Track Packs, from the time that you redeem your promotional code or gift certificate, you will have up to one year to use t= he credit(s) that you have redeemed towards Track purchases. After one year, your credits will expire.
Napster has the right to request alternative forms of payment and/or close customer accounts if a fraudulently obtained promotion= al offer or gift certificate is presented.
You may burn each Purchased Track to a CD an unlimited number of times, but may only burn each Purchased Track up to seven (7) tim= es as part of any particular playlist of songs. A = "playlist" is a discrete group of Purchased Track= s that are arranged together in a particular order. Once you have burned a Purchas= ed Track to a CD, you agree not to copy, distribute, or transfer the track from that CD to any other media or device.
You may transfer a Purchased Track an unlimited number=
of
times to up to three (3) portable devices that are compatible with the
Service's Usage Rules and security requirements. Once you have transferred a
Purchased Track to a compatible portable device, you agree not to copy,
distribute, or transfer it from that device to any other media or device.
The burning or transfer capabilities provided for here= in shall not operate to waive or limit any rights of the copyright owners in Tracks or Materials or any works embodied in them.
If you are using the version of the Service that is accessible from Microsoft Corporation's Windows Media Player 9 Series, you = will only be able to burn or transfer Purchased Tracks using the Windows Media Player. In addition, if you are using the version of the Service that runs = in Microsoft Corporation's Windows XP Media Center Edition 2004, certain featu= res that are available in the Service will not be available in the "distan= ce viewing" experience.
All rights not expressly granted to you in this Agreem= ent are reserved to Napster and/or its licensors.
Sync/Restore. Napster will maintain a record of your Purchased Tracks. You may use the "Sync/Restore" function to obta= in another copy of those Purchased Tracks for up to two (2) additional compute= rs that you own.
Importing Tracks. You can use the Napster Client to im= port certain song files that you have obtained independent of the Service and pl= ay them using the Client. The Client currently only supports MP3 and Windows M= edia files. Napster does not represent or guarantee that the Client will successfully import or support any song files that are not Tracks. Further, Napster does not purport to grant you any rights to use any such song files. Your use of such song files must be subject to another grant of rights that= you have received from the copyright holder(s) and any other legal rights holde= rs (please note that there may be more than one copyright involved in any trac= k). If you violate the copyright laws, there may be fines or criminal charges brought against you, even if you don't get any commercial benefit from the illegal copies. You agree to indemnify and hold harmless Napster, its partn= ers, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, = for all claims resulting from your use of such song files and/or from your violation of any copyright laws by such use.
Loss of Rights by Napster. Napster may at any time los= e the right to make certain Tracks and/or Materials available. In such event, you will no longer be able to obtain these Tracks and/or Materials or to utilize the "Sync/Restore" function for Purchased Tracks.
Delivery of Products. On occasion, technical problems = may delay or prevent delivery of Purchased Tracks and Materials to you. Your so= le remedy with respect to Purchased Tracks and any Materials that are not delivered will be either replacement of such products or refund of the price paid for such content, at Napster's discretion.
Customer Support. Please direct any questions concerni= ng the Client, the Service, billing and/or Usage Rules to a Napster customer servi= ce representative by visiting www.napster.com/support and using the Help Reque= st form.
InBox/Sending Messages. Wh= en you register for the Service and download the Client, you will receive a Service "Inbox" that can be used to receive or send email messages (colle= ctively, the "Napster Messaging System" or "NMS"). You may send = NMS messages to other Service members or to regular email addresses. When you s= end an NMS message, the recipient will be able to reply to the email address th= at you have provided to Napster upon registration. Therefore, you should not u= se the NMS functionality to send messages to any person(s) to whom you do not = wish to share your personal email address. If you do not wish to receive any NMS messages from a particular Service member, you may utilize the "Blocked Senders List" functionality within the Client.
Monitoring Public Areas. The Service may have features= that allow you to exchange messages with other members (via "Public Areas"). The text of any NMS message is also considered to be a "= Public Area." Napster may, but is not obliged to, restrict your use of NMS, monitor any activity or edit or remove content in Public Areas, or restrict access by other members to your NMS messages. Napster takes no responsibili= ty and assumes no liability for any content, materials, messages and the like = that you or any other member posts to or views in a Public Area or makes availab= le via a "Public Profile," or sends to or receives from another memb= er over NMS or an instant messenger system. You agree to indemnify and hold harmless Napster, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, from and against all claims resulting from content, messages, materials and the like that you post to any Public Area, including by sending via NMS.
Gifting. You may use the Gift Certificate functionality within the Client to gift Tracks and/or Subscription Service memberships to third parties, following the instructions within the Client. After you click the "Buy" button and purchase the gift certificate, the gift that= you have purchased will be emailed to the address that you provided and your billing payment method will immediately be charged for the value of the gif= t. This charge will be separate from your current membership or any credits for Tracks that you have previously purchased. Gift certificates are not refundable, exchangeable or cancelable once purchased. Napster Gift certificates can be redeemed within one year from purchase. The foregoing expiration does not apply to residents of CA, CT, HI, LA, MA, ME, MT, ND, N= H, NJ, OH, OK, RI, VT or WA and anywhere else where expiration is prohibited by law, who, if necessary, may contact Napster by visiting www.napster.com/sup= port and using the Help Request form to redeem their certificates beyond the year time frame.
Restrictions. You may not use the Service, including N= MS, to transmit, display, perform or otherwise make available any messages, conten= t or materials (i) that are illegal, obscene, threat= ening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) = that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iii) that infringe third-party rights or harm minors in any way. You may not interfere with or disrupt the Service or any networks connected to or by the Service. In addition, you may not use a false email address or otherwise mislead other members as to your identity or to the origin of a message or content. By posting messages, inputting data, or engaging in any other form of communication through the Service, you agree that Napster may copy, sublicense, adapt, transmit, publ= icly perform or display any such content to provide and/or promote the Service and/or to respond to any legal requirement, claim or threat. If Napster's u= se of such content exploits any proprietary rights you may have in such materi= al, you agree that Napster has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right do so. You agree that any loss or damage of any k= ind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.
CHARGES / BILLING
Agreement to Pay. You agree to pay for all Tracks and Materials that you purchase through the Service and Napster may charge your billing payment method for any such payment(s). Napster may, in its discret= ion, post charges to your billing payment method individually or may aggregate y= our charges with other purchases you make on the Service. You are responsible f= or keeping your account secure and confidential and you will be responsible for any charges that are incurred by any person through your account. All charg= es will be billed to the billing payment method you designate when you first m= ake a purchase or incur a charge. If any of your billing information changes, y= ou must update that information in the "Member Information" section = of the "My Account" area.
Right to Change Prices. All prices for products within= the Service are subject to change by Napster at any time.
Taxes. Prices quoted are generally inclusive of any applicable taxes, including sales taxes. Napster reserves the right to chan= ge this policy at any time.
Electronic Contracts. You agree that any submissions y= ou make for electronic purchases constitute your intent and agreement to be bo= und by the terms of and to pay for such purchases. To the extent that such electronic purchases are offered to you by a third party, you acknowledge t= hat Napster shall not be responsible or liable to you for the products or servi= ces purchased.
EXPLICIT CONTENT
Certain albums may be subject to the Recording Industry Association of America ("RIAA") "Parental Advisory Label&quo= t; (as defined at http://www.riaa.com/issues/parents/advisory.asp). The RIAA assigns the Parental Advisory Label to an entire album and not the individu= al songs on the album. All Tracks from such labeled albums will be labeled as "explicit" within the Service ("Explicit Tracks"). If a= ny of your searches on the Service return Explicit Tracks, they will be identi= fied as such in the search results area. During registration, you may elect to filter out Explicit Tracks from your search and browse results within the Service. You may change that election at any time. You may also elect to cr= eate a "Parental Control Password" (which can be different from your registration password) by clicking on the applicable link and following the directions presented. If you create a Parental Control Password, you will be asked for that password any time you try to change your election to filter = out Explicit Tracks. Note that Tr= acks that were recorded prior to 1985 are not subject to the RIAA Parental Advis= ory Label. Napster shall have no liability or responsibility to you for any con= tent or materials, including Explicit Tracks, that may be available in connection with the Service that you might find objectionable.
INTERNATIONAL CONSIDERATIONS
Currently, the Service is only available to residents = of the United States. You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Service from countries outside of t= he U.S. You agree to abide by U.S. and other applicable export control laws and further, not to upload to the Service any data or software that cannot be exported.
PRIVACY
For additional information regarding Napster's use of information collected in connection with the Service, please refer to Napst= er's Privacy Policy, a copy of which is available at http://www.napster.com/privacypolicy.html and which is expressly made part = of this Agreement.
COPYRIGHT INFORMATION
General. As noted above, the Service, the Tracks, the = Client and the Materials contain and/or comprise copyrighted or other proprietary subject matter, and your use of them is governed by this Agreement, certain end-user license agreements, and applicable law.
All-Music Guide Data. Certain portions of the Materials comprise third-party proprietary data. The AMG Data is the property of AEC = One Stop Group, Inc., ("AEC"), doing business as AMG, All-Music Guide= and All Media Guide. You may not modify, copy, scan or use any other method to reproduce, duplicate, translate, republish, transmit or distribute in any w= ay any portion of the ALL MUSIC GUIDE DATA. You may not download ALL MUSIC GUI= DE DATA except for your own personal, non-commercial use. You agree to indemni= fy, defend and hold harmless AEC (and its affiliates), and Napster (its partner= s, parents, subsidiaries, agents, affiliates and/or licensors, as applicable), against any and all claims, damages, costs or other expenses that arise directly or indirectly out of or from (a) your unauthorized use of the ALL MUSIC GUIDE DATA, (b) your violation of this directive, and/or (c) your unauthorized activities in connection with the ALL MUSIC GUIDE DATA.
Billboard Data. All Billboard chart data are the copyr= ighted works of VNU eMedia, Inc. Billboard chart infor= mation may not be published, broadcast, displayed or redistributed without the pri= or written agreement of VNU eMedia, Inc.
Gracenote CDDB Functionali= ty. CD and music-related data from Gracenote, Inc., copyright © 2000-2003 Gracenote. Gracenote Encode Client Software, copyright 2000-2003= Gracenote. This product and service may practice one = or more of the following U.S. Patents: #5,987,525; #6,061,680; #6,154,773, #6,= 161,132, #6,230,192, #6,230,207, #6,240,459, #6,330,593, and other patents issued or pending.
Gracenote and CDDB are reg= istered trademarks of Gracenote. The Gracenote logo and logotype, the Gracenote logo, CDDB log= o and logotype and the "Powered by Gracenote&quo= t; logo are trademarks of Gracenote. Gracenote Encode is a service mark of Gracenote.
Notices. Napster respects the intellectual property ri= ghts of others, and it expects you to do the same. If you know of or suspect that any use of the Service, Tracks, Materials and/or the Client constitutes copyright infringement, please send a notice to Napster Customer Support by visiting www.napster.com/support and using the Help Request form.. The noti= ce must contain all of the information set forth in Section 512(c)(3)(A) of the U.S. Copyright Act, 17 U.S.C. § 101 et seq.
PATENT AND TRADEMARK
All trademarks, service marks, trade names, slogans, l= ogos, and other indicia of origin that appear on or in connection with the Service are the property of Napster and/or its affiliates, licensors and/or license= es. You may not copy, display or use any of these marks without prior written permission of the mark owner. The Service and the Client (and portions of t= hem) may be protected under patent law and may be the subject of issued patents and/or pending patent applications.
VIOLATION OF INTELLECTUAL PROPERTY RIGHTS
If Napster receives a notice alleging that you have en= gaged in behavior that infringes Napster's or other's intellectual property right= s or reasonably suspects the same, Napster may suspend or terminate your account without notice to you. If Napster suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, includ= ing for any amounts that you have previously paid.
PROMOTIONS AND ADVERTISING
Napster and/or its business partners may present advertisements or promotional materials on or through the Service. Your participation in any promotional event is subject to the terms and conditio= ns associated with that event. Your dealings with, or participation in promoti= ons of, any third-party advertisers on or through the Service are solely between you and such third-party. You agree that Napster shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Serv= ice.
LINKS TO THIRD-PARTY SITES
The Service may present links to third-party websites = not owned or operated by Napster. Napster is not responsible for the availabili= ty of these sites or their contents. You agree that Napster is not responsible= or liable, directly or indirectly, for any damage or loss caused or alleged to= be caused by or in connection with your use of or reliance on any content of a= ny such site or goods or services available through any such site.
MODIFICATIONS TO SERVICE
Napster reserves the right at any time and from time t= o time to modify or discontinue, temporarily or permanently, the Service (or any p= art thereof) with or without notice to you, without any liability to you or to = any third party.
REMEDIES
You agree that any unauthorized use of the Service, the Tracks, the Materials, the Client or any related software or materials woul= d result in irreparable injury to Napster and/or its affiliates or licensors for whi= ch money damages would be inadequate, and in such event Napster, its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief aga= inst you. Nothing contained in this Agreement shall be construed to limit remedi= es available pursuant to statutory or other claims that Napster, its affiliates and/or licensors may have under separate legal authority.
INDEMNITY
You agree to indemnify and hold harmless Napster and i= ts agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising fr= om or concerning your breach of this Agreement and your use of the Service, the Tracks, the Client or the Materials and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.
TERMINATION
Napster may in its sole discretion terminate this Agre= ement or suspend your account at any time without notice to you in the event that= you breach (or Napster reasonably suspects that you have breached) any provisio= n of this Agreement. If Napster terminates this Agreement, or suspends your acco= unt for any of the reasons set forth in this paragraph, it shall have no liabil= ity or responsibility to you, and Napster will not refund any amounts that you = have previously paid.
You understand and agree that your cancellation of your account and Service membership is your sole right and remedy with respect to any dispute with Napster.
DISCLAIMERS
You understand and agree that your use of the Service, Tracks, Client, and the Materials is at your own sole risk. THE SERVICE, TRACKS, MATERIALS AND THE CLIENT (THE "PRODUCTS") ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY NAPSTER OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "NAPSTER ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE NAPSTER ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE = AND ANY WARRANTY OF NONINFRINGEMENT. THE NAPSTER ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF = THE USE OF THE PRODUCTS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY NAPSTER ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR USING THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS = OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATIO= N OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE NAPSTER ENTITIES.
NAPSTER MAKES NO WARRANTY THAT ANY PARTICULAR CD BURNE= R OR PORTABLE DEVICE WILL BE COMPATIBLE WITH THE CLIENT OR THAT ANY CD BURNED US= ING THE CLIENT WILL FUNCTION IN ALL CD PLAYERS. IT IS YOUR SOLE RESPONSIBILITY = TO ENSURE THAT YOUR SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE CLIENT.
UNDER NO CIRCUMSTANCES SHALL ANY NAPSTER ENTITY BE LIA= BLE FOR ANY UNAUTHORIZED USE OF THE SERVICE, TRACKS, MATERIALS AND/OR THE CLIEN= T.
UNDER NO CIRCUMSTANCES SHALL ANY NAPSTER ENTITY BE LIA= BLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES= FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATI= ON, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN= IF THE NAPSTER ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO = THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, THE NAPSTER ENTITIES SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES = AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EX= CEED US$10.
LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referr= ed to herein represent your entire agreement with Napster with respect to your us= e of the Service. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law = to reflect, as nearly as possible, the original intentions of the parties, and= the remaining portions shall remain in full force and effect. The laws of the S= tate of New York, excluding its conflicts?of?law rul= es, govern this Agreement and your use of the Service, the Tracks, the Materials and the Client. You expressly agree that the courts in the State of New Yor= k, New York County, have exclusive jurisdiction over any claim or dispute with Napster or relating in any way to your account or your use of the Service, = the Tracks, the Materials and the Client. You further agree and expressly conse= nt to personal jurisdiction over you in the federal and state courts in New Yo= rk County in connection with any such dispute including any claim involving Napster or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.
*SUBSCRIPTION SERVICE ADDENDUM
Napster offers certain features that are available onl= y to members of the Subscription Service, as described below. Use of the Subscription Service will be subject, in addition to all the other terms of this Agreeme= nt, to the terms described in this Addendum. The Subscription Service is a subscription service that you must pay to join, and you will be charged on a recurring basis for your continued membership. The Subscription Service has= a standard tier, as well as a "Napster To Go" tier, for which you m= ay register and pay an additional fee. "Napster To Go" members may a= lso downgrade to a standard Subscription Service membership. If we make any cha= nges to these terms and conditions that you do not wish to accept, your only rem= edy is to terminate your subscription membership.
DESCRIPTION OF SUBSCRIPTION SERVICE
Usage Rules -- Additions.
A "Stream" is a Track that you play directly= from and while you are logged on to the Service. You may play as many Streams as= you like while your subscription is current. You may not attempt (or encourage others) to capture, copy, or download a streamed Track. Napster will count = the number of times that you stream each Track for royalty accounting and analy= sis purposes.
A "Download" is a Track that you may save to= the hard drive of your personal computer and play back as many times as you want for so long as your subscription is current. You may make an unlimited numb= er of Downloads while your subscription is current. You may copy each Download= to up to two additional personal computers that you own (i.e. a total of 3 copies). If you wish to burn Downloads to CDs or transfer them to compatible portable devices (other than using the "Napster To Go" Service described below) you will need to pay for them as Purchased Tracks. You may= not share Downloads with anyone else. Napster automatically renews your rights = to all of your Downloads at the beginning of each Subscription Month (as defin= ed below) so long as your subscription remains current. This means that in ord= er to play any Download after the end of a Subscription Month (as defined belo= w), you must log on to the Service so that Napster can renew your rights for th= ose Tracks. The Client will count the number of times that you play a Download, including while you are offline, for royalty accounting and analysis purpos= es.
If you register for the "Napster To Go" tier= , you will be able to transfer your Downloads an unlimited amount of times to up = to a maximum of three (3) compatible portable devices for as long as your "Napster To Go" membership is current. For royalty accounting and= analysis purposes, Napster will track the Downloads that you so transfer and the num= ber of times that you play Downloads on such devices. Napster also automatically renews your rights to any Downloads stored on your portable devices at the beginning of each Subscription Month. Thus, in order to continue to play su= ch Downloads on that portable device, you will need to dock your portable devi= ce (i.e., connect to the PC) and log onto Napster at the beginning of each Subscription Month.
If you have Tracks that were pre-loaded to your person= al computer, portable device, CD or DVD, you may access and play these Tracks = as Downloads only after you have registered for a tier of the Subscription Service. You may not otherwise access or play these Tracks and you agree no= t to attempt to do so.
For a current list of portable devices that are compat= ible with "Napster To Go", please see the section titled "Napster= To Go Compatible Devices" at: http://www.napster.com/compatible_devices/. Napster's ability to offer portable device compatibility is subject to chan= ge at any time with respect to any content.
Agreement to Pay. By completing the Subscription Servi= ce registration, you authorize Napster to charge applicable recurring subscrip= tion fees to your designated billing payment method. Monthly subscribers are bil= led on a 30-day cycle, which begins upon Subscription Service registration (or = at the end of a limited free trial period, if applicable to a promotion that y= ou joined through) and ends 30 days thereafter (each a "Subscription Month"). If you are already a standard Subscription Service member and= you sign up for the "Napster To Go" tier, your billing payment method will immediately be charged so that your monthly fee for that month (or ann= ual fee if applicable) is increased on a pro-rated basis. If you are a "Napste= r To Go" user and you downgrade your membership to a standard Subscription Service membership, you will be charged for "Napster To Go" until= the end of the Subscription Month in which you cancel your "Napster To Go" tier. If you are joining Napster under a subscription plan with an installment billing option (e.g., 1 year subscription billed monthly), Naps= ter will charge your billing payment method for each applicable installment wit= hout further advance notice. If yo= ur billing payment method changes during the term of your subscription plan, y= ou must immediately update the billing payment method associated with your Nap= ster account. If Napster is unable= to charge your billing payment method for an installment, Napster may: (i) immediately suspend or terminate your Napster acco= unt, (ii) seek collection of the outstanding amount owed under the subscription = plan and/or (iii) seek legal action against you for breach of this Agreement.
Billing Authorizations for Free Trial Memberships. You= may be required to provide billing payment method to register for a free trial offer to the Subscription Service. In that event, you agree that Napster may obtain a pre-authorization for the fee amount that you will be charged if y= ou complete the free trial and continue a Subscription Service membership. It = is possible that some financial institutions may perceive these requested amou= nts as actual pending charges. These are not actual charges however, and Napster will not be responsible for any results, such as an overdraft fee, that may occur to your account because of them.
Right to Change Subscription Fees. All subscription fe= es are subject to change on a prospective basis upon notice from Napster. If you do not accept the new fees, you should terminate your subscription immediately= .
Cancellation. To receive information on how to cancel = your subscription, please visit www.napster.com/support, select the Help Request form and choose Cancellation Request from the Type of Help menu. If you can= cel your subscription, Napster will not refund any remaining portion of your subscription fees. Cancellati= on will take effect at the end of the billing period during which you deliver notice to Napster. Please note that, following cancellation of your subscription, any Downloads that you h= ave saved to the hard drives of your personal computers or “Napster To Go= ” Downloads that you have transferred to compatible portable devices will bec= ome inactive and not playable. The files will remain but will not be accessible. If you later become a Subscription Service member, you can reactivate them. If you do not plan to become a Subscription Service member again or otherwise wish to remove the inactive files, you may delete them using your computer’s or device’s standard functionality to delete files.&nb= sp;
**XM + NAPSTER
The “XM + Napster” services are only avail= able to currently active subscribers of XM Satellite Radio. XM Subscribers may sign up for eit= her the XM + Napster Light service (which is free to access) or the XM + Napster subscription service. XM + Na= pster Light will give you access to= all of the features of Napster Light and you will also be able to access XM Rad= io Online streaming music channels via the “Radio” tab in your Nap= ster Client. XM + Napster service = (which requires a separate subscription from XM Satellite Radio) will give you the same access as XM + Napster Light and will additionally include all functio= ns of Napster’s Subscription Service (although you will only have access= to Napster To Go features if you have registered for that service with Napster). In both cases, the = XM Radio Online channels will offer non-interactive streaming music access ONL= Y. Notwithstanding the foregoin= g, when a Track is playing on one of your XM Radio Online channels, if Napster= has the applicable rights for that Track, that Track will be added to the Now Playing area of the Napster Client so that you may be able to also access t= hat Track via XM + Napster Light (for purchasing) and/or Napster (for Streaming and/or Downloading), as applicable. However, Napster may not have some or any rights to some or all of t= he Tracks that may be played on your XM Radio Online channels.
All streaming of XM Radio Online, though being facilit= ated via Napster’s Client will be managed directly by XM, under your perso= nal and separate account with XM. Your access to XM Radio Online content is contingent upon your maintenance and continuation of your separate XM Subscriber account which is required to be= in good standing, including payment of any fees and adhering to any other terms and conditions required by XM. Napster is not a party to your relationship with XM and is not responsible for such terms or any changes to them. XM’s current terms and conditions governing XM Radio Online are located at http://www.xmradio.com/get_xm/customer_service.html. If your account with XM is interru= pted, suspended or terminated for any reason, you will no longer be able to acces= s XM Radio Online streaming via Napster. In such case, your only recourse is with XM and Napster will have no responsibility to you relative to any XM Radio Online content.
© 2006 Napster, LLC.