This Agreement is in addition to, and not in lieu of, the Rhapsody End User License Agreement to which you must also agree in order to download the RI Application to your hard drive ("Application" means the "Software" and "Content" as defined in the Rhapsody End User License Agreement). By registering, you not only agree to the terms set forth herein, but you affirm your consent to the Rhapsody End User License Agreement. The Rhapsody End User License Agreement is hereby incorporated by reference hereto and made a part of this Agreement.
1. ENROLLMENT IN THE SERVICES
In exchange for any applicable fees and subject to certain limitations as described herein, you will be granted the right to stream and/or download content that is available via the applicable Service(s) pursuant to the terms specified during the registration process, and simultaneously have access to our broad range of editorial and contextual information about the content and its creators. You will also be given the option to participate in the RI Social Network (defined below), whereby users can collaborate and share listening preferences and playlists from their individual profiles.
In order to access your Service(s), you must complete the registration process, have downloaded the Application (if required), possess the hardware and software required by the Application, and be connected to the Internet.
By subscribing to or accessing any Service, you are representing to us that you are authorized to use the credit card you submit for payment (if any) and that you reside in the United States. If you are a parent or guardian paying on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such other person, any charges associated with that person's use of any of the Services, and that person's compliance with this Agreement. It is your responsibility to protect your credit card from use by such persons. You agree to take such steps as are appropriate to ensure such compliance and will indemnify and hold RI and its affiliates and distribution and syndication partners harmless from any breach of this Agreement.
As consideration for your rights under this Agreement, You agree that RI may provide marketing, promotional offers, advertising and other information to you via email or other means of communication, including push notifications on your mobile device. You may opt out of receiving email messages from RI at any time by clicking the "unsubscribe" link in any emails you receive from RI. You may opt out of receiving push notifications from RI at any time within your mobile application settings.
2. TERM, FEES AND PAYMENTS
Applicable fees for Services may include a periodic (e.g., monthly, quarterly or annual) subscription fee based on the particular Service requested, transaction fees, taxes, and additional fees for the purchase of permanent downloads.
(a) Free Trial Period
RI may offer you a one-time, free trial period or limited preview during which you can try out such Service(s) for free (a "Free Trial"). The length of any such Free Trial, number of tracks you can play during the Free Trial, and the particular Services included may vary from time to time. RI reserves the right to modify the parameters of your Free Trial at any time. If you terminate your subscription prior to the expiration of any Free Trial, you will not have any financial obligation with respect to your subscription, and your credit card will not be charged for your use of the Service. However, you will be charged for any Services you choose to access that are not included within the Free Trial. For example, if your Free Trial does not include permanent downloads from the online music store, you will be charged the applicable fee. If your Free Trial is duration based, it 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 on the day following the last day of your Free Trial ("Activation Date"). Each user is entitled to one Free Trial per Service. If you subscribe to a tier of Service after you have already received a Free Trial on such tier of Service, your credit card will be billed immediately upon registration. Free Trials are also limited to one per credit card. Should two customers use the same credit card to subscribe to RI, only the first customer is eligible to receive a Free Trial.
(b) Initial Subscription Payment
By registering for one of the Services, you agree that if you do not cancel your subscription before the expiration of your Free Trial, you will pay the applicable fees for the Service that you select upon registration. If you do not cancel your subscription prior to the expiration of the Free Trial, we will charge your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees will automatically be charged to the credit card you designated as the credit card to be billed for your account.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month, one quarter, etc.). At the time of renewal, your credit card will be charged our then-current fees for the applicable subscription, provided that if the fee for your renewal Service has increased, we will notify you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to elect not to renew.
(d) Your Billing Date
Your credit card will be charged for the renewal term of your Service on your billing date ("Billing Date"), based on the type of subscription (e.g., on a particular date each month for a monthly subscription; on the three-month date for a quarterly subscription; on the anniversary for an annual subscription, etc.). If, however, your Activation Date is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be.
(e) Early Termination
Some subscriptions are provided and priced based on your commitment to subscribe for a minimum period of time, e.g. six months or twelve months. Such minimum commitment is based on your Billing Date, rather than the first or last day of a calendar month. You acknowledge that, in the event of early termination by you, we may incur costs and/or diminution in the value of the agreement that may be difficult to measure. Therefore, in the event of early termination for any reason (including voluntary termination by you or credit card expiration), the early termination fee stated at the time of registration may be charged to you as RI's liquidated damages resulting from your early termination.
(f) Subscription Upgrades
If you are a subscriber to a premium tier of the Service that includes on-demand streaming of full length tracks or certain other premium features, and if you have not logged in to the Service for at least sixty (60) days or two billing cycles, RI may change your Service tier to "RI Radio" or 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 RI Application, and then clicking "Edit" next to "Subscription Status" in your Account Summary. However, you may be required to contact Customer Service for certain changes.
(g) Track Downloads
Some Services may include the ability to obtain permanent downloads independent from any subscription Service(s) to which you may subscribe. In some cases, such downloading will incur a per-permanent download basis. If such purchase fees are required, you will be made aware that a cost will be incurred and asked to explicitly accept the charges prior to commencement of downloading. However, if you have explicitly turned on "one click purchasing" (or similar functionality) in your account settings, you will not be asked to accept the charges prior to commencement; with "one click purchasing," your single request to "purchase" is your confirmation of the order.
Regardless of the use of the word "purchase," and except as set forth in the following paragraph, all tracks offered for download are offered for license, not purchase or sale, and are subject to this Agreement and any other license terms and conditions applicable to the content, including limitations imposed by the use of any digital rights management technology. All licenses to download are personal to the customer. Your request to "purchase" a track by downloading is personal to you, and the track may not be used, sold, rented, transferred, licensed or otherwise provided to any other user. License to downloaded tracks include only those rights explicitly stated in the Service (typically, the right to play back for your own personal use from your personal computer, CD player, digital player, or other personal consumer electronic device), and, for the avoidance of doubt, do not include the right to create a derivative work, to make copies other than for your own personal use, or to use it in any commercial manner.
All permanent downloads purchased from RI, regardless of format, can be downloaded only once. RI will not replace or allow re-downloading of lost or damaged music files once the initial download is complete. For this reason, RI recommends that you backup your RI purchased music to CD or external hard drive for personal use.
Notwithstanding anything to the contrary contained in the second paragraph of this subparagraph 2(g) of this Agreement, certain content downloads offered within the Service(s) are sold (not licensed) to you directly from SBME Digital LLC ("Sony BMG"). Such downloads are delivered to you by us on behalf of Sony BMG, and we are acting as an agent of Sony BMG for such transactions.
(h) No Warranties
WITHOUT LIMITING ANY PROVISION HEREIN, RI MAKES NO WARRANTY THAT ANY PARTICULAR COMPACT DISC BURNER, PLAYER, PORTABLE DEVICE, OR OTHER HARDWARE WILL BE COMPATIBLE WITH RI'S APPLICATION OR THAT ANY COMPACT DISC BURNED USING THE APPLICATION WILL FUNCTION IN ALL COMPACT DISC PLAYERS. IT IS SOLELY YOUR RESPONSIBILITY TO ENSURE THAT YOUR RECORDING AND PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE APPLICATION.
(i) No Refunds
All fees paid and charges made prior to termination as provided herein, including any advance charge or payment for the subscription term during which you terminate your subscription, are nonrefundable. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(j) Methods of Payment and Credit Card Terms
All payments must be made by VISA, MasterCard, American Express or Discover Card. We do not accept cash, checks or any other payment form. AS BETWEEN YOU AND RI, YOU, AND NOT RI, 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. You agree to pay all fees and charges incurred in connection with your subscription and its password (including any applicable taxes) at the rates in effect when the charges were incurred. If RI does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by RI.
(k) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Service(s).
Prices exclude all taxes unless stated otherwise. RI collects taxes at the rate in effect at the time your transaction is completed. If the tax rate changes before the transaction is completed, the new tax rate in effect will apply. RI cannot accept exemption certificates for purchases made online. Contact customer service if this transaction is exempt from tax.
(m) Transaction Fees
RI may impose an additional transaction fee based on transactions associated with Services, including a transaction fee applied to your periodic subscription fee, or your purchase of permanent downloads or burns. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction, likely via the order path for a Service, by email notification concerning your Service(s) and applicable fees, through the order path for permanent downloads, or in a similar, explicit manner.
(n) Credit Card Authorization
If you request access to Services for which a fee is charged based on each individual transaction (typically, the purchase of permanent downloads), RI may seek authorization of your credit card to validate your ability to pay the applicable fees prior to the first purchase. The authorization amount is typically $5, but may vary based on the relevant Services. This is a common and standard practice. This authorization is not a charge. However, this authorization may reduce your available credit by the authorization amount until your bank's next processing cycle.
(o) Modifications to Fees or Billing Terms
RI RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT OR SERVICES PROVIDED BY RI, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate your subscription by contacting customer service. Your continued use of the Service(s) following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO RI TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SERVICE(S) YOU USE.
3. REFER-A-FRIEND PROGRAM
(a) A qualified referral ("Qualified Referral") is triggered when a person ("Referred Customer") on the Rhapsody website ("Site") who has not previously taken a trial via the Site, and who arrives at the Site via Your Refer-A-Friend link ("Link") pays for three (3) months of Rhapsody subscription service. Only one Qualified Referral can be earned for each Referred Customer. IF YOUR SUBSCRIPTION IS VIA A PRE-PAID CARD, BILLED THROUGH A WIRELESS SERVICE OR THIRD PARTY, A NO CREDIT CARD (NOCC) TRIAL OR LIMITED LIFETIME FREE (LLF) USER ACCOUNT , YOU ARE NOT ELIGIBLE FOR THE REFER-A-FRIEND PROGRAM OR ANY FREE CREDITS.
(b) For each Qualified Referral You will earn a free month of credit for the Rhapsody subscription service. Credit has no cash value, is non-refundable and non-transferrable. Trial sign ups cancelled by the Referred Customer prior to the Referred Customer making three (3) months' worth of payment for the Rhapsody subscription service do not qualify as a Qualified Referral.
(c) Bulk email distribution, distribution to strangers, or any other promotion of a Link in a manner that would constitute or appear to constitute spam or unsolicited commercial email under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of the Referring Customer's account and deactivation of the Link.
(e) Rhapsody reserves the right to cancel or modify the Refer-A-Friend Program or this Agreement at any time in its sole discretion. Rhapsody reserves the right to close the account(s) of any Referring Customer and/or Referred Customer, and to request proper payment if either attempts to use the Refer-A-Friend Program in a questionable manner or in breach of Rhapsody terms and conditions or in violation of any law, statute or regulation.
(f) Limitation of Liability
IN NO EVENT SHALL RHAPSODY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF RHAPSODY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. RHAPSODY'S MAXIMUM AGGREGATE LIABILITY TO THE REFERRING CUSTOMER, THE REFERRED CUSTOMER AND/OR AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE LIMITED TO NO MORE THAN THE MONETARY VALUE OF THE SUBSCRIPTION SERVICE EARNED BY THE REFERRER OR REFEREE PARTICIPATING IN THIS PROGRAM. THE REFERRING CUSTOMER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE. ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE).
4. RHAPSODY SOCIAL NETWORK
The RI Service and Application provides you with access to the RI social network feature ("RI Social Network"). The RI Social Network allows you to discover music by making social connections with other RI Social Network members, sharing your playlists and listening preferences, and locating your friends' RI Social Network profiles via integration with other third party services such as Gmail and Facebook. By using any of the Rhapsody Services you are automatically a member of the RI Social Network and you understand that other members of the RI Social Network may discover your RI Social Network profile via integration with third party services that they use.
(a) Customizing Your User Profile
You may choose whether to use the RI Social Network feature by making your profile public and creating social connections with other users. To customize your profile, you must log in to www.rhapsody.com, 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 RI Social Network. Your RI Social Network profile settings also give you the option to share your listening preferences on Facebook. By choosing to connect your RI Social Network profile to your Facebook account, you understand that your Rhapsody listening selections will automatically be displayed within your Facebook profile and linked to your name within the Facebook newsfeed.
If you do not choose to make your profile public, only your genre and artist listening preferences will be anonymously displayed. Your default anonymous profile will not show any personally identifiable information, nor will it show any playlists you have created. Within your profile settings, you are also given the option to completely hide your profile. If you choose to hide your profile, none of your listening preferences will be displayed, and you will not be able to use the RI Social Network to connect with other users.
(b) Information You Post Within the RI Social Network
By posting or displaying any User Content via the RI Social Network, you represent that you are the owner of such User Content and that posting such information or User Content does not violate any privacy, publicity, or intellectual property rights of any party. In no event does RI assume any responsibility or liability for any claims of intellectual property infringement arising out of or in connection with any User Content that you post or is displayed within the RI Social Network. You also understand that by participating in the RI Social Network, you grant RI and its affiliates, successors, and assigns a worldwide, royalty-free, irrevocable license to use, display, reproduce, distribute, modify, or publish any of your User Content posted within the RI Social Network for any promotional or commercial purposes, without any obligation to make any payment to your or others or to give you credit.
(c) Community Guidelines
As a member of the RI Social Network community, you understand that the RI 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 RI Social Network, you agree to be respectful of others within the RI Social Network community and you agree to not post any offensive, harassing, defamatory, or abusive messages or materials that RI, 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 RI deems, in its sole discretion, to be Prohibited Content or objectionable in any way, whether offensive to any user or deemed offensive by RI, in RI'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. RI is not responsible for any loss of personal data resulting from termination of your account. If you have posted infringing User Content more than twice to the RI Social Network, you will be deemed a repeat infringer, and RI will permanently block your access to our websites and services.
Although RI reserves the right, in its sole discretion, to review, edit, restrict, remove, or otherwise approve the content posted within any user profile in the RI Social Network, RI is under no obligation to monitor any user material. If you believe any posts or content within the RI Social Network to be inappropriate, please report abuse by CLICKING HERE. Even if reported, you understand and acknowledge that RI is not obligated to remove any User Content. You also understand that RI does not endorse any views, opinions, or information posted within the RI Social Network and under no circumstances will RI be liable, in any way, for any claims arising from User Content including, but not limited to, claims of fraudulent information or claims of libelous or defamatory statements.
(a) Termination By You
To cancel your subscription to any of the Services, please click here. Once you have terminated your subscription, we will stop billing your credit card until and unless you purchase another product or Service. However, please note that there may be an early termination fee, as described in Section 2(e) above, based on your subscription. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge or payment for the subscription term during which you terminate your subscription. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.
(b) Termination By Us
You agree that RI, 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) for any reason, including, without limitation, if RI believes that you have infringed upon any rights of another, including intellectual property rights, or violated or acted inconsistently with the letter or spirit of this Agreement or the Rhapsody End User License Agreement. RI may also in its sole discretion and at any time modify or discontinue providing the Application and/or any Service, or any part thereof, with or without notice. Further, you agree that RI 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.
6. CUSTOMER SERVICE
You understand and agree that RI is solely responsible for all customer service, help, billing and account issues related to your subscription. Neither your ISP nor any third party website through which you may have accessed any Service is responsible for customer service, help, billing and account issues related to the Services. You agree not to direct any questions, requests for assistance, or inquiries about the Application or any Service to your ISP or to any third party website through which you may have accessed the Application or any Service. For assistance, please contact Customer Service.
7. YOUR ACCOUNT INFORMATION
(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the subscription process (such information being the "Account Information").
(b) Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated card by selecting "Manage My Account" from the "My Account" menu page and then clicking the appropriate link in the Manage My Account section.
(c) Our Use of Account Information
(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 the Content), are the property of RI or its licensors and are protected by copyright and other intellectual property laws. The Services provided through the Application may be used for your personal, non-commercial use only. You agree not to (i) reproduce, record, retransmit, redistribute, disseminate, sell, rent, lend, broadcast, publicly perform, adapt, sub-license or circulate the Application or any Content received through the Application or any Service (including music content) to any third party, (ii) exploit any such Content or the Application for commercial purposes without the express prior written consent of RI, 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 indemnify and hold harmless RI for your failure to comply with this section.
RI and its licensors retain exclusive ownership of the Application, the Content, the Services, and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Services, the Application or their contents. RI and its licensors reserve all rights not expressly granted hereunder. You shall promptly notify RI 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 RI or its licensors. The Application and the Services contain proprietary information that is protected by copyright laws and international treaty provisions.
RI expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your service immediately for your failure to comply with any such local, state or federal law.
9. COPYRIGHT INFRINGEMENT
It is Rhapsody's policy to respect the intellectual property rights of its artists and content providers. If you are a copyright holder who believes that Rhapsody or one of its Services is hosting or linking directly to infringing copies of your work, please let us know. Pursuant to 17 United States Code 512(c)(3), notice of alleged copyright infringement should be sent to Rhapsody's designated copyright agent at the following address:
Rhapsody International Inc.
500 3rd Street, Suite 460
San Francisco, California 94107
A notification of claimed copyright infringement must be addressed to Rhapsody'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 Rhapsody'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 has a good faith belief 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 under penalty of perjury, 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
RI 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. RI will make reasonable efforts to notify you at least twenty-four (24) hours in advance of any anticipated downtime that will exceed one hour.
RI also reserves the right to modify or discontinue, temporarily or permanently, functions and features of the Application and Service(s) with or without notice. Due to contractual or other limitations, from time to time, some tracks available in any particular catalog may no longer be available. RI reserves the right to change or remove Content at any time.
RI shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).
11. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RI AND ITS LICENSORS, AND ITS DISTRIBUTION AND SYNDICATION PARTNERS, DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
RI MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES RI MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. RI MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
12. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL RI OR ITS PARENTS, MEMBERS, LICENSORS, SUBSIDIARIES, PARTNERS, AFFILIATES, SERVICE PROVIDERS, INVESTORS, SYNDICATORS, DISTRIBUTORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES (COLLECTIVELY THE "PROTECTED PARTIES") BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF RI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL ANY PROTECTED PARTY BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT PAID FOR THE APPLCIATION OR THE SPECIFIC ITEM OF CONTENT GIVING RISE TO THE APPLICABLE CLAIM FOR DAMAGES.
RI'S LICENSORS AND SAMSUNG ARE INTENDED THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT, AND SHALL HAVE THE RIGHT TO ENFORCE THIS AGREEMENT AGAINST YOU.
13. MODIFICATION OF SUBSCRIPTION AGREEMENT
RI may modify this Agreement at any time in its sole discretion. If any modification is unacceptable to you, you agree that your only recourse is to terminate your use of any of the Service(s) as provided herein. Your continued use of any Service following our posting of a change of terms use, an email notice to you, or a new Agreement on the Application will constitute your binding acceptance of the change, until such time as you terminate your subscription.
You agree to indemnify and hold the Protected Parties harmless from any claim or demand, including 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 RI Social Network user profile, your violation of this Agreement, or your violation of any law, regulation or third-party right.
15. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
Before initiating any arbitration or proceeding, you and Rhapsody may agree to first attempt to negotiate any dispute, controversy or claim arising from this Agreement or related to the Services ("Claim") (except those Claims expressly provided in Section 15(f) below) informally for at least thirty (30) days. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. Rhapsody agrees that your Claim cannot expire during the 30-day negotiation period. You may download a form Notice at www.rhapsody.com/arbitration-forms. Rhapsody will send its notice to your billing or other physical address (if on file with Rhapsody) and email you a copy to the email address you have provided. You will send your notice to Dispute Resolution, Rhapsody International Inc., 500 Third St., Suite 460, San Francisco, CA 94107 (the "Notice Address").
(b) Binding Arbitration Between You and Rhapsody
If you do not wish to attempt to resolve a Claim through the optional negotiation process or if the parties fail to resolve a Claim through the negotiation process within the above thirty (30) day period, you and Rhapsody agree that, except as provided in Section 15(f) below, all Claims will be exclusively resolved by binding arbitration solely between you and Rhapsody. BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND RHAPSODY ARE WAIVING THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU AND RHAPSODY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless you and Rhapsody agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of representative or class proceeding. If the class waiver provisions of this Section 15(b) are found to be unenforceable, then the entirety of this Dispute Resolution and Arbitration Agreement shall be null and void.
(c) Rules Governing the Arbitration
If you do not wish to attempt to resolve a Claim through the optional negotiation process or if the parties fail to resolve a Claim the through negotiation process within the above thirty (30) day period , either party may be initiate arbitration by sending a written notice requesting arbitration to the other party ("Arbitration Notice"). You may download a form Arbitration Notice at www.rhapsody.com/arbitration-forms. Any election to arbitrate by one party will be final and binding on the other.
The arbitration will be conducted by the American Arbitration Association ("AAA") and pursuant to the AAA's Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-788-7879, or by writing to the Notice Address. In the event of a conflict between the terms set forth in this Section 15 and the AAA Rules, the terms in this Section 15 will control and prevail. The arbitrator is bound by the terms of this Agreement.
As part of the arbitration, both you and we will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. Other than class procedures or remedies, the arbitrator may award any remedies that would be available in court. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. The arbitrator will provide a reasoned written statement of the arbitrator's decision which shall explain the award given and the findings and conclusions on which the decision is based.
This Agreement involves interstate commerce and is subject to the Federal Arbitration Act. All issues are for the arbitrator to decide, including issues relating to the scope of enforceability of this Dispute Resolution and Arbitration Agreement. Except as otherwise provided in this Agreement, (i) you and Rhapsody may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision will be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
(d) Arbitration Fees and Awards
If you initiate arbitration for a Claim pursuant to the optional Negotiation Section and other procedures above and are required to pay a filing fee, you may submit proof of payment to Rhapsody in your Arbitration Notice and Rhapsody will promptly reimburse you for the your payment of the filing fee, unless your claim is for $10,000 or greater. If we are initiating arbitration for a Claim, we will pay all costs charged by AAA for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the AAA Rules, except that you will not be required to pay our attorneys' fees or other costs if you do not prevail in the arbitration. If the arbitrator issues you an award that is greater than the value of Rhapsody's last written settlement offer, then Rhapsody will pay you the amount of the award or U.S. $1,000, whichever is greater.
(e) Location and Manner of Arbitration
Unless you and Rhapsody agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, Rhapsody agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(f) Exceptions to Negotiations and Arbitration
You and Rhapsody agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claims seeking to enforce or protect, or concerning the validity of, any of your or Rhapsody's intellectual property rights; and (ii) any Claims related to allegations of theft, piracy or unauthorized use of the Service. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such courts' jurisdiction in lieu of arbitration. As some jurisdictions do not allow for some of the dispute resolution provisions set forth in these Terms of Service, some of these provisions may not apply to you.
You and Rhapsody agree that if any portion this "Dispute Resolution and Arbitration Agreement" section is found illegal or unenforceable (except any portion of Section 15(b) above), that portion will be severed and the remainder of this section will be given full force and effect. If Section 15(b) above is found to be illegal or unenforceable then any such Claim will be exclusively decided by a court of competent jurisdiction within Seattle, State of Washington, United States of America, and you and Rhapsody agree to submit to the venue and personal jurisdiction of that court.
16. GOVERNING LAW
This Agreement and any arbitration arising from disputes under this Agreement shall be governed by the laws of the State of Washington, United States of America, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state and federal courts sitting in Seattle, in the State of Washington. You also agree that the state or federal courts in the State of Washington have exclusive jurisdiction over any judicial review or enforcement of an arbitration award and exclusive jurisdiction over any suit between the parties not subject to arbitration. 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 RI 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 RI of any provision of this Agreement.
If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. RI may assign this agreement as it deems appropriate for any reason at any time. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. This Agreement (including all documents expressly incorporated herein by reference, including but not limited to the Rhapsody End User License Agreement) constitutes the complete and exclusive agreement between RI and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.
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NOTE: Rhapsody® is a trademark of RI.
Last modified: February 26, 2014