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Terms of Use

eMusic.com Terms of Use

Last updated November 4, 2015

*EFFECTIVE SEPTEMBER 10, 2015, EMUSIC.COM, INC. IS A WHOLLY OWNED SUBSIDIARY OF TRIPLAY, INC. THEREFORE, ALL USER DETAILS AND INFORMATION ARE NOW OWNED BY TRIPLAY, INC.

THESE EMUSIC.COM TERMS OF USE (“AGREEMENT”) ARE A LEGAL AND BINDING AGREEMENT BETWEEN YOU (“YOU,” “YOUR” OR “YOURSELF”), AS THE END USER, AND EMUSIC.COM INC. (“OUR,” “US,” “WE” OR “EMUSIC”), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED MEDIA SERVICES TOGETHER WITH ALL INFORMATION, CONTENT, APPLICATIONS, SOFTWARE, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH THE SAME BY US AND/OR THIRD PARTIES (COLLECTIVELY, “THE SERVICE(S)”). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY REGISTERING FOR, USING OR OTHERWISE ACCESSING THE SERVICE, OR ANY COMPONENT THEREOF, IN ANY MANNER WHATSOEVER, YOU ARE ACKNOWLEDGING THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT, CONSENTING TO BECOME A PARTY TO THIS AGREEMENT, AND AGREEING TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. THE SERVICE IS OFFERED AND MADE AVAILABLE ONLY TO USERS 18 YEARS OF AGE OR OLDER. IF YOU ARE NOT YET 18 YEARS OLD, PLEASE DISCONTINUE USING THE SERVICE IMMEDIATELY, OR IF, FOR ANY REASON, YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DISCONTINUE THE REGISTRATION PROCESS AND DO NOT ACCESS OR USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, APPLICATION, SOFTWARE OR ANY MUSIC, TEXT OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICE IN ANY MANNER.

eMusic reserves the right, in its sole discretion, to change or modify all of or part of this Agreement at any time. We will notify you of any such changes via email or by posting a change notice on our site at http://www.emusic.com/. If any modification is unacceptable to you, you must stop using the Service. Unless otherwise specifically set forth in our notice, all changes shall be effective upon the date we notify you of the same (“effective date”). Your continued use of the Service following the effective date will constitute your binding acceptance of and agreement to be bound by the changes specified therein. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. If any new products or services become available, they will be considered a part of the Service and your use of them will be governed by the terms and conditions of this Agreement unless we notify you that different terms and conditions apply. You must also comply with any additional terms which apply to third-party content, material, information, software or other services.

When we refer to the “use” of the Services in this Agreement, we mean any actual or attempted access or use of any Service, including, without limitation, any transmission, exchange of information, or communication associated with the Services. These terms and conditions, together with the other terms of use applicable to other eMusic owned or controlled web sites and applications and any other policies, rules and provisions which are described, linked or otherwise referred to in and form a part of this Agreement, including, without limitation our Privacy Policy and Community Rules constitute the entire agreement between you and us, superseding any and all prior or inconsistent understandings, representations or agreements regarding the Service.

TABLE OF CONTENTS

1.         Enrollment in Service

2.         Modification

3.         Your Registration Obligations

4.         eMusic Privacy Policy

5.         Technological and Use Limitations

6.         Terms, Fees, Payments; Trial Period Provisions

6.1.      Per-Download Music Service

6.2.      Discounted Download Music Service

6.3.      Audiobook Service

6.4.      Hold Period

7.         Termination/Cancellation

8.         Intellectual Property Rights

9.         Copyright Infringement

10.       Third Party Sites and Information

11.       Linking to eMusic Website

12.       Disclaimer of Warranties

13.       Limitations of Liability

14.       Indemnity

15.       Choice of Law and Consent to Jurisdiction

16.       Other Important Provisions

 

           

1.         ENROLLMENT IN THE SERVICE

eMusic currently provides the Service for sampling and/or downloading media in a DRM-free file format. The Service offers, for a certain recurring fee, and subject to certain limitations as described herein, specified download rights to our catalog of DRM-free media files. The Service also includes the ability to purchase music downloads independent from any “Paid Music Account” (as defined in Section 6.2.1), subject to certain limitations as described herein. Furthermore, the Service includes the ability to preview a portion of music downloads, typically 30 to 90 second clips of said downloads, by streaming same, prior to purchasing same (“Music Clips”). You understand and agree that these enrollments are limited, revocable licenses to access and make personal use of the Service. In order to use the Service, you must obtain access to the Internet and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet and to be able to download and listen to and/or view the media files. You must be at least 18 years of age to enroll and must provide valid credit or debit card information. To begin the enrollment process, you must complete the Service registration process located on our web site at http://www.emusic.com/registration/1.html(“eMusic Site”), on any eMusic software application (“eMusic App”), or such other registration process as we may provide from time to time.

2.         MODIFICATION

We may modify, terminate, or suspend any or all aspects of our Service at any time, in our sole discretion, without liability, including but not limited to the availability of any feature, content, and hours of availability.

3.         YOUR REGSITRATION OBLIGATIONS         

3.1 Registration for the Service is conducted in the English language only.  On registering for the Service you agree that you will retain a copy of the Agreement that applies at the time of your registration whether by saving it to your computer or printing it. We will also retain a record of the Agreement.

3.2 You agree to provide true, accurate, current and complete information about yourself as prompted by the Service registration process, including a billing payment method (such information being the “Registration Data”). You further agree that, in providing such Registration Data, you will not knowingly omit or misrepresent any material facts or information and that you will promptly enter corrected or updated Registration Data via the Service, or otherwise advise us promptly in writing of any such changes or updates. You further consent and authorize us to verify your Registration Data, including but not limited to your credit or debit card, as required for your use of and access to the Service, as applicable. If your card issuer does not validate your card and authorize payment to us, we will not accept your registration.

3.3 Once you complete your registration to the Service, you will be asked to provide an email address and password of your choosing (collectively referred to herein as “IDs”). You agree that you will not allow another person to use your IDs to access and use the Service under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your IDs and for any charges, damages, liabilities or losses incurred or suffered as a result of your failure to do so. We are not liable for any harm caused by or related to the theft of your IDs, your disclosure of your IDs, or your authorization to allow another person to access and use the Service using your IDs. Furthermore, you are solely and entirely responsible for any and all activities that occur under your account including any charges incurred relating to the Service. You agree to immediately notify us of any unauthorized use of your account or any other breach of security known to you. Breach of any provision of this paragraph may subject you to criminal or civil liability.

3.4 When you submit Registration Data to us, we will send you an email confirming receipt of your Registration Data but this shall not require us to accept your registration for the Service.

4.         EMUSIC PRIVACY POLICY

eMusic takes your privacy seriously and operates under the policies and principles outlined in its Privacy Policy, which contains important information and disclosures relating to the collection and use of your personally identifiable information in connection with your use of the Service. Our Privacy Policy is set forth at Privacy Policy. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.

5.         TECHNOLOGICAL AND USE LIMITATIONS

5.1 eMusic will make reasonable efforts to keep the eMusic Site and eMusic App operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of eMusic may, from time to time, result in temporary service interruptions. eMusic also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. You agree that eMusic shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.

5.2 By enrolling in and/or using the Service, you acknowledge and agree that you have no right to provide any files obtained through the Service to any other party or through any other means. You may only make copies of any file obtained through the download portion of the Service for your own personal use. You understand and agree that any Music Clip you stream is solely intended for real time listening only and not intended for copy, storage, or permanent download even for your personal use.

5.3 Because the Service is designed for personal sampling and use, you are not allowed to use any automated system for the selection or downloading of files. You may not use any method or technology to record, capture, or otherwise copy and/or reproduce any Music Clip you preview. You may not use any script or other mechanism to collect, scrape, or gather any information or data from the Service.

5.4 You represent and warrant that you own or otherwise control all of the rights to the content that you post to the eMusic Site. You may not use or allow others to use, your IDs and/or the Service, directly or indirectly, nor upload, distribute, transmit, communicate, link to, publish or access any data, information or material through, using or otherwise in connection with the Service, that: (a) is libelous, defamatory, vulgar or obscene, pornographic, sexually offensive or explicit, harmful or harassing, threatening, hateful, racially, culturally, ethnically or otherwise objectionable or offensive, discriminatory or abusive; (b) violates any law or regulation or the rights of others; (c) causes duress, distress or discomfort to another or is likely to deter or discourage others from using the Service; and/or (d) infringes any intellectual property, privacy, proprietary rights or confidentiality obligations of others. You are solely responsible and liable for any such activity, behavior, use and conduct. We have no liability and you bear the sole and exclusive risk associated with use of or reliance on the accuracy, quality, completeness, reliability or usefulness of any data, information or material in connection with your IDs. You also may not use, nor allow others to use, your IDs, the Service, directly or indirectly, to: (a) attempt to or actually disrupt, impair or interfere with, alter or modify the Service or any information, data or materials posted and/or displayed by us or anyone else; (b) act in a way that affects or reflects negatively on us, the Service, or anyone else; (c) collect or attempt to collect any information from others including, without limitation, personally identifiable information, without such party’s prior consent. You agree to comply with all applicable laws and regulations, including but not limited to local, state, provincial, federal laws, statutes, rules and regulations, as well as any international treaties, which are applicable to your use of the Service.

5.5 You are prohibited from violating or attempting to violate the security of the Service, including, without limitation: (a) accessing data not intended for you or logging onto a processor, communications or access device or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of the Service or to breach security or authentication measures, regardless of your motives or intent; (c) attempting to interfere with or disrupt the Service or service to any user, processor, host or network, including, without limitation, by submitting a virus, worm or Trojan horse; or (d) sending unsolicited e-mail or other information, including promotional materials, advertising, junk mail, spam, chain letters, or pyramid schemes. Violations of system or network security or this Agreement may result in civil or criminal liability. We have the right to investigate occurrences, which may involve such violations and we may involve, provide information to and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

5.6 You accept that it is your responsibility to install appropriate anti-virus and security software on your computer hardware to protect against a computer security threat which may be transferred to your computer hardware through the use of the Service and/or the eMusic Site including but not limited to viruses, Trojan horses, time bombs or any other form of programming routine designed to damage or otherwise impair a computer functionality or operation.

5.7 eMusic derives its rights to use the media offered on the Service from artists, record labels, publishers and other third parties for fixed periods of time and, sometimes, for limited methods of distribution, or for limited territories. As well, eMusic is sometimes required to pull certain media off the Service (or otherwise restrict access to such media) for legal or commercial reasons. Therefore, certain media offered or advertised by eMusic may not be available when you try to download, and not all media or methods of distribution are available in all countries. Furthermore, you are prohibited from using or accessing the Service if you live in a country outside of the Service territory, currently the United States, Canada, member states of the European Union, Norway and Switzerland.

5.8 Some tracks are not eligible for individual download and are only available as part of a full album download. Album only designations may be changed at any time.

5.9 eMusic may make available to you, from time to time, software and software updates for your use in connection with the Service (any and all such software and software updates, individually and collectively, the “Software”). The Software is licensed, not sold, to you by eMusic. All rights associated with the Software not expressly granted to you hereunder are hereby reserved. The eMusic Download Manager is a Software and may be required to download certain tracks or albums. You may use the Software only in connection with the Service. Except as and only to the extent any following restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Software, you may not separate any individual component of the Software for use other than in connection with the Service, may not incorporate any portion of it into your own programs or compile any portion of it in combination with your own programs, may not transfer it for use with another service, or use it, or any portion of it, over a network and may not sell, rent, lease, lend, loan, distribute or sub-license the Software or otherwise assign any rights to the Software in whole or in part. We may discontinue some or all of any Software we provide, and we may terminate your right to use any Software at any time and in such event may modify it to make it inoperable.

5.10 You agree that you will not, and you will not encourage, assist or authorize any other person to, for any reason whatsoever, reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules or other protection measures applicable to the Service or the content available on the Service. You further agree that you will not, and will not enable others to, copy (except as expressly permitted hereunder), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, create derivative works of the Software, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the Software). Any attempt to do so is a violation of the rights of eMusic and its licensors of the Software, if any. You agree to abide by the rules and policies established from time to time by eMusic. Such rules and policies will be applied generally in a nondiscriminatory manner to users of the Service and Software, and may include, for example, required or automated updates, modifications, and/or reinstallations of the Software and obtaining available patches to address security, interoperability, and/or performance issues.

5.10 eMusic reserves the right to immediately and permanently terminate your access to the Service if eMusic believes that you are violating any of the limitations listed in this section.

6.         TERM, FEES, PAYMENTS; TRIAL PERIOD PROVISIONS

6.1 Per-Download Music Service

6.1.1 The Service may include, subject to territory limitations, the ability for you to purchase music downloads independently from any Paid Music Account (“Per-Download Music Service”). By registering for such Per-Download Music Service, you agree that you will pay all fees and charges accrued by or in connection with your IDs for the music Service (including any applicable purchase price, taxes and late fees) at the rates in effect when the charges were incurred, and that eMusic may charge the method of payment designated during the registration process. All fees and charges are nonrefundable. All sales are final. If you want to designate a different credit card, or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Per-Download Music Service using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com. YOU ARE RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES AND FOR PROVIDING EMUSIC WITH A VALID METHOD OF PAYMENT FOR PAYMENT OF ALL FEES.

6.1.2 Payment must be made by a credit card accepted by eMusic, or any other methods of payment as eMusic may accept from time to time. Your credit card will be billed at the time of or shortly after a transaction (e.g., purchase of an album download). If eMusic does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by eMusic. Your card issuer agreement governs your use of your designated card in connection with the music Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT EMUSIC, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.

6.1.3 If you have downloaded some but not all of the individual tracks of a particular album on the Per-Download Music Service, eMusic may offer you the ability to “complete” the corresponding album at a discounted price. Please note that the discount mentioned in the previous sentence may not apply if you have previously downloaded the individual tracks from the album for free, as part of your Paid Music Account, at eMusic’s sole discretion, or if the track was downloaded more than 180 days prior. Consequently, the price of the album will be the full price of the said album. Albums that are no longer available for sale on eMusic or that are being made available to eMusic by another licensor are not eligible for this “complete” album option.

6.1.4 If eMusic does not receive the full amount of your charges on the Per-Download Music Service, a late payment charge of one and one-half percent (1.5%) per month (or the highest amount allowed by law, whichever is lower) may be added to your account and immediately become due and payable. Unless you notify eMusic of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release eMusic from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to eMusic within sixty (60) days of its first appearance on an invoice or credit card statement.

6.1.5 You agree to pay eMusic all reasonable attorney’s fees and costs incurred by eMusic to collect any past due amounts. Your music account may be deactivated without further notice 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 music Service account.

6.1.6 The fees, charges and payments hereunder do not include, and you are solely responsible for paying, any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Per-Download Music Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Per-Download Music Service.

6.1.7 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE PURCHASE PRICES ON ITS PER-DOWNLOAD MUSIC SERVICE. EMUSIC DOES NOT PROVIDE PRICE PROTECTION OR REFUNDS IN THE EVENT OF A PRICE REDUCTION OR PROMOTIONAL OFFERING.

6.1.8 In the event you purchased on the Per-Download Music Service a track or album but it fails to download completely, eMusic may allow you to retry the download by clicking the “retry download” button on the album page. In any other event of technical errors when downloading a track or album, please contact Customer Service by clicking here or sending an email to service@emusic.com

6.1.9 In November 2010, eMusic pricing switched from a credit system to a currency system for its music downloads. Under a credit system, an End User would pay a subscription fee and receive credits to apply toward downloading music. In the currency system, on the other hand, the End User pays a recurring fee, and the exact value of that fee is deposited into her digital wallet, in the End User’s billed currency (“Funds”). The End User then utilizes her Funds to download music according to the listed price of the track or album. When eMusic switched its system from credit to currency, any unused music credits in an eMusic member’s account were converted according to the following rules:
6.1.9.1 In the United States (“US”) territories:

6.1.9.1.1 Any credits granted in association with a “Music Trial Period” (as defined in Section 6.2.5) were converted at a rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system;

6.1.9.1.2 Any additional credits offered for your continued enrollment to the Service during a certain period of time or additional credit offered with your first month paid subscription were converted at a rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system;

6.1.9.1.3 Any “Booster Pack” credits were converted at a rate of US$0.60 per unused credit in your account as of the day of the switch to a currency system;

6.1.9.1.4 Any “Code” credits offered by an eMusic’s marketing partner were converted at a rate of US$0.89 per unused credit in your account as of the day of the switch to a currency system; and

6.1.9.1.5 Any other unused credits other than the ones previously mentioned in this section, were converted at a minimum rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system.

6.1.9.2 In Canadian territories, any unused music credits in an eMusic member’s account were converted at a rate of CAN$0.49 per unused credit in your account as of the day of the switch to a currency system.

6.1.9.3 In the European Union (“EU”) territories, any unused music credits in an eMusic member’s account were converted at a rate of EURO 0.49 per unused credit in your account as of the day of the switch to a currency system.

6.1.9.4 In the United Kingdom (“UK”) territories, any unused music credits in an eMusic member’s account were converted at a rate of GBP 0.42 per unused credit in your account as of the day of the switch to a currency system.

 

6.2 Discounted Download Music Service

6.2.1 By registering for a Paid Music Account, you agree to pay the recurring fees designated for the “Music Service Level” (as defined herein) you select, in accordance with your account, which can be found at https://www.emusic.com/account/index.html, and in accordance with this section 6.2, in order to replenish your digital wallet and download music at discounted rates. A Music Service Level is the paid music plan selected by the End User to gain access to the discounted download music Service.  No music (track or album) will be provisioned or delivered to you until you spend your Funds from your digital wallet to download said music. In accordance with this section 6.2., additional charges, which you agree to pay by registering for a Paid Music Account, may include purchases you make (i.e., gift account and/or Booster Packs) or service level changes you request. Subject to your right to terminate the music Service prior to the Expiration of any Music Trial Period (defined hereinafter in Section 6.2.5. below), you agree to pay the applicable amounts for the minimum period specified therein. For the avoidance of doubt, if you select an offer that includes free bonus funds (depending on your territory, funds includes Dollars, Pounds, Euros, etc.) as part of your first Paid Music Account period, you will be charged upon registration and are responsible for paying fees for the Paid Music Account as described in the preceding two sentences. The term “month” (or “monthly”) is defined herein as a one (1) calendar month cycle; “quarter” (or “quarterly”) is defined herein as a three (3) calendar month cycle; “semiannual” (or “semiannually” or “6-month”) is defined as a six (6) calendar month cycle; “year” (or “annual” or “annually”) is defined as a twelve (12) calendar month cycle; and “biennial” (or “biennially” or “two-year”) is defined herein as a twenty-four (24) calendar month cycle. Any time reference means Eastern Time.

6.2.2 In limited territories only, if you have downloaded some but not all of the individual tracks of a particular album as part of your Paid Music Account, eMusic may offer you the ability to “complete” the corresponding album at a discounted price. Please note that the discount mentioned in the previous sentence may not apply if you have previously downloaded the individual tracks from the album for free, as a per-download purchase, at eMusic’s sole discretion, or if the track was downloaded more than 180 days prior. Consequently, the price of the album will be the full price of said album. Albums that are no longer available for sale on eMusic are not eligible for this “complete” album option.

6.2.3 Album Pricing may vary (i.e., increase or decrease) from time to time. Before clicking the “Download Album” or “Complete Album” button, you must always carefully check the Album Pricing displayed on your screen after refreshing the page. “Album Pricing” refers to the price, in the End Users billed currency, charged for the download of a full album.

6.2.4 Subject to the terms in Section 6.2.10 and 7.2 below, we will automatically charge your Paid Music Account each billing cycle at the fee rate applicable to the Music Service Level which you have selected, unless terminated by eMusic or until you notify eMusic of your decision to cancel your Paid Music Account. See below the Section entitled “Termination / Cancellation” for cancellation instructions. All Paid Music Accounts require a commitment for a minimum period(s) of time (“Music Service Level Period”) and, consequently, cannot be cancelled until the end of the Music Service Level Period. You may, at any time during your Music Service Level Period, set your music account to cancel, or select another monthly, quarterly, semiannual, or annual Music Service Level into which to renew, effective at the end of your then-current Music Service Level. At the end of your monthly, quarterly, semiannual, or annual Music Service Level Period, your Paid Music Account will automatically renew and you will be billed for a monthly, quarterly, semiannual, or annual Music Service Level respectively at your then-current Music Service Level, unless you elect to terminate your Paid Music Account or enroll in another Music Service Level. At the end of your current biennial Music Service Level Period, your Paid Music Account will automatically renew into an annual Music Service Level comparable to your biennial Music Service Level, and you will be billed for such annual Music Service Level. eMusic reserves the right to not automatically renew your Music Service Level and/or Paid Music Account.

6.2.5 If, when registering, you signed up for a Music Account with a “Music Trial Period,” you will be allowed a period during which you can try out the Paid Music Account Service. Only one Music Trial Period is permitted per person. Certain tracks or albums may not be available for download during your Music Trial Period. The Music Trial Period will expire upon the last day of the number of days indicated in the Music Trial Period offer concerned as calculated in Eastern Time, or, if earlier, the moment on which you download more than the “Free Trial Funds” (depending on your territory, funds includes Dollars, Pounds, Euros, etc.), indicated in such offer (“Expiration of the Music Trial Period”). (Please refer to the confirmation provided on the site and via email for the specific terms of your Music Trial Period). If you terminate your Music Account prior to the Expiration of the Music Trial Period, you will not have any further obligation with respect to the version of the music Service to which you have committed, and any remaining Free Trial Funds will expire. IF YOU DO NOT CANCEL ANY MUSIC TRIAL PERIOD, THEN ON EXPIRY OF IT OR, ALTERNATIVELY, IF YOU EXCEED THE ALLOWABLE FREE TRIAL FUNDS GRANTED DURING YOUR MUSIC TRIAL PERIOD, YOU WILL BE AUTOMATICALLY ENROLLED IN AN EMUSIC PAID MUSIC ACCOUNT AND BILLED BASED ON THE PAYMENT PLAN SELECTED WHEN YOU REGISTERED (OR AS YOU MAY HAVE UPDATED THROUGH “YOUR ACCOUNT” SECTION OF THE MUSIC SERVICE). By signing up to a Music Trial Period, you understand and agree that: (i) you will be required to provide billing payment method upon registration; and (ii) eMusic will obtain a pre-authorization for the fee amount that you will be charged at the Expiration of the Music Trial Period. It is possible that some financial institutions may perceive these requested amounts as actual pending charges. These are not actual charges however, and you are solely responsible for any rules that your credit card company applies to them, such as overdraft fees. Free Trial Funds are only valid during Music Trial Period; you shall forfeit any Free Trial Funds not used during the Music Trial Period.

6.2.6 If, when registering, you signed up for a Music Service Level with an additional “New Member Bonus” offered for your continued enrollment to the Paid Music Account Service during a certain period of time (e.g., an additional US$15 per month for 3 months, or an additional US$20 with your first month of your Paid Music Service / an additional CAN$5 per month for 3 months, or an additional CAN$20 with your first month of your Paid Music Service / an additional EURO 5 per month for 3 months, or an additional EURO 10 with your first month of your Paid Music Service / an additional GBP 5 per month for 3 months, or an additional GBP 20 with your first month of your Paid Music Service)(“New Member Bonus Required Enrollment Period”), you will receive the “New Member Bonus” at the beginning of each 30-day cycle during the New Member Bonus Required Enrollment Period, at no additional cost, in addition to the  Funds applicable to the Music Service Level you selected. Upon cancellation or termination of your Paid Music Account prior to the end of the New Member Bonus Required Enrollment Period, you shall forfeit any “New Member Bonus” not yet issued. “New Member Bonus” shall only be valid during the 30-day cycle in which they are issued, unless otherwise explicitly stated.

6.2.7 Each month / quarter / 6-months / year / two-years (as applicable) during the term of this Agreement following the Expiration of the Music Trial Period, the fees for use of the Paid Music Account Service will be billed automatically to the credit card you designated during the registration process or subsequently provided to eMusic. Under any Music Service Level, any unused balance greater than or equal to US$0.49 / CAN$0.49 / EURO 0.49 / GBP 0.42 in each cycle does not carry over to the following cycle and is forfeited, unless your Paid Music Account expressly allows rollover. Under any Music Service Level, any unused balance less than US$0.49 / CAN$0.49 / EURO 0.49 / GBP 0.42 in each cycle (“Loose Change”) will carry over solely to the following cycle. (Unused Free Trial Funds, New Member Bonus, Booster Pack Funds, any reward funds, or any courtesy funds will not be rolled over under any Music Service Level or for any other reason, regardless of the amount. You must use such funds before they expire or they will be forfeited.). You agree to pay or have paid all fees and charges incurred in connection with your IDs for the music Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed your Paid Music Account using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com.

6.2.8 Payment must be made by a credit card accepted by eMusic or any other methods of payment as eMusic may accept from time to time. Your credit card will be billed monthly / quarterly / semiannually / annually / biennially (as applicable) in advance commencing on your Expiration of the Music Trial Period or on registration to a Paid Music Account if you do not benefit from a Music Trial Period and continuing thereafter on a monthly / quarterly / semiannually / annually / biennially basis (as applicable) on the last day of the one (1) calendar month for the one (1) calendar month cycle / last day of the third (3rd) calendar month for the three (3) calendar month cycle / last day of the sixth (6th) calendar month for the six (6) calendar month cycle / last day of the twelfth (12th) calendar month for the twelve (12) calendar month cycle / last day of the twenty-fourth (24th) calendar month of the twenty-four (24) calendar month cycle (as applicable, respectively) following the expiration of the preceding music billing period (“Music Billing Date”). Paid Music Accounts automatically renew throughout the day, at or around the time you sign-up to it. So you will be charged prior to 11:59pm ET on your Music Billing Date. If eMusic does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by eMusic. Your card issuer agreement governs your use of your designated card in connection with the music Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT EMUSIC, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.

6.2.9 If eMusic does not receive the full amount of your Paid Music Account balance within thirty (30) days of the Music Billing Date, a late payment charge of one and one-half percent (1.5%) per 30 day cycle (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify eMusic of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release eMusic from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to eMusic within sixty (60) days of its first appearance on an invoice or credit card statement.

6.2.10 You agree to pay eMusic all reasonable attorney’s fees and costs incurred by eMusic to collect any past due amounts. Your music account may be deactivated without further notice if payment is past due, regardless of the amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your music Service account.

6.2.11.1 To End Users in the US, EU, and UK territories, the fees, charges and payments hereunder do not include, and you are solely responsible for paying, any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.

6.2.11.2 To End Users in the Canadian territories, the fees, charges, and payments hereunder are inclusive of any applicable VAT, taxes, and other charges imposed by a taxing or other regulatory authority relating to your use of the Service.

6.2.12 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS MUSIC FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY EMUSIC, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.emusic.com. AT EMUSIC’S SOLE DISCRETION, EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF ANY SUCH CHANGE VIA EMAIL. If any such change is unacceptable to you, you may cancel your Paid Music Account, as provided in Section 7 below. YOUR CONTINUED USE OF THE MUSIC SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.

6.2.13 Upgrade/downgrade: Once you have entered into a paid Music Service Level, you may upgrade or downgrade. Downgrade means that you are selecting any lower Music Service Level. Upgrade means that you are selecting any higher Music Service Level. Downgrade can only be effective at the end of your then-current Music Service Level Period. At your option, upgrade can be effective either immediately or at the end of your then-current Music Service Level Period. For monthly Music Service Level End Users, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded Music Service Level and your existing Music Service Level, and you agree to receive the difference in Funds between your new upgraded Music Service Level and your existing Music Service Level. For example, an End User who registered for the “eMusic Basic” plan, who then upgrades to the “eMusic Premium” plan, will pay the difference between US$20.99 and US$11.99 (i.e., US$9.00) / CAN$20.99 and CAN$11.99 (i.e., CAN$9.00) / EURO 20.99 and EURO 11.99 (i.e., EURO 9.00) / GBP 17.99 and GBP 9.99 (i.e., GBP 8.00), and will receive US$11 worth of additional Funds (the difference between $20.99 and $11.99) plus $2 of Bonus Dollars / CAN$11 worth of additional Funds representing the difference between CAN$20.99 and CAN$11.99, plus CAN$2 of Bonus Dollars / EURO 11 worth of additional Funds representing the difference between EURO 20.99 and EURO 11.99 and plus EURO 2 of Bonus Euros / GBP 10 worth of additional Funds representing the difference between GBP 17.99 and GBP 9.99 plus GBP 2 of Bonus Pounds . For annual Music Service Level End Users, if you decide to upgrade immediately, you will be credited with Funds at the trade in value of your existing annual Music Service Level as a discount on your new annual Music Service Level. The trade in value is calculated by taking the total price of the current annual Music Service Level, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the Music Service Level. For example, trade in value for an  “eMusic Basic Annual” Music Service Level with a 20% discount with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is $129.99 divided by twelve, then multiplied by 6, which equals $64.99 / trade in value for an “eMusic Basic Annual” Music Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is CAN$129.99 divided by twelve, then multiplied by 6, which equals CAN$64.99 / trade in value for an “eMusic Basic Annual” Music Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is EURO 129.99 divided by twelve, then multiplied by 6, which equals EURO 64.99 / trade in value for an “eMusic Basic Annual” Music Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is GBP 107.99 divided by twelve, then multiplied by 6, which equals GBP 53.99. After the upgrade is effective, you agree to pay the recurring fees designated for the Music Service Level you upgraded for in accordance with Your Account, which can be found at https://www.emusic.com/account/index.html, and in accordance with this section 6.

6.2.14 In the event you purchased a track or album but it fails to download completely, eMusic may allow you to retry the download by clicking the “retry download” button on the album page. In any other event of technical errors when downloading a track or album, please contact Customer Service by clicking here or sending an email to service@emusic.com.

6.2.15 In November 2010, eMusic pricing switched from a credit system to a currency system for its music downloads. Under a credit system, an End User would pay a subscription fee and receive credits to apply toward downloading music. In the currency system, on the other hand, the End User pays a recurring fee, and the exact value of that fee is deposited into her digital wallet, in the End User’s billed currency (Funds). The End User then utilizes her Funds to download music according to the listed price of the track or album. When eMusic switched its system from credit to currency, any unused music credits in an eMusic member’s account were converted according to the following rules:

6.2.15.1 In the US territories:

6.2.15.1.1. Any credits granted in association with a “Music Trial Period” (as defined in Section 6.2.5) were converted at a rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system;

6.2.15.1.2 Any additional credits offered for your continued enrollment to the Service during a certain period of time or additional credit offered with your first month paid subscription were converted at a rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system;

6.2.15.1.3 Any “Booster Pack” credits were converted at a rate of US$0.60 per unused credit in your account as of the day of the switch to a currency system;

6.2.15.1.4 Any “Code” credits offered by an eMusic’s marketing partner were converted at a rate of US$0.89 per unused credit in your account as of the day of the switch to a currency system; and

6.2.15.1.5 Any other unused credits other than the ones previously mentioned in this section, were converted at a minimum rate of US$0.50 per unused credit in your account as of the day of the switch to a currency system.

6.2.15.2 In Canadian territories, any unused music credits in an eMusic member’s account were converted at a rate of CAN$0.49 per unused credit in your account as of the day of the switch to a currency system.

6.2.15.3 In the European Union (“EU”) territories, any unused music credits in an eMusic member’s account were converted at a rate of EURO 0.49 per unused credit in your account as of the day of the switch to a currency system.

6.2.15.4 In the United Kingdom (“UK”) territories, any unused music credits in an eMusic member’s account were converted at a rate of GBP 0.42 per unused credit in your account as of the day of the switch to a currency system.

6.3 Audiobook Service

6.3.1 By registering for the Audiobook Service, you agree to pay the recurring fees designated for the “Audiobook Service Level” (the paid Audiobook plan selected by the End User to gain access to the Audiobook Service) you select in accordance with your account, which can be found at https://www.emusic.com/account/index.html, and in accordance with this section 6.3. Additional charges may include purchases you make (i.e., gift memberships and/or Booster Packs) or service level changes you request. Subject to your right to terminate the Audiobook Service prior to the Expiration of the Audiobook Trial Period (defined hereinafter in Section 6.3.3. below), if any, you agree to pay the applicable amounts for the minimum period specified therein. For the avoidance of doubt, if you select an offer which includes free bonus credits as part of your first paid Audiobook membership period, you will be charged upon registration and are responsible for paying fees for the Audiobook Service as described in the preceding two sentences. The term “month” (or “monthly”) is defined herein as a one (1) calendar month cycle; “bi-monthly” (or “2-month”) is defined as a two (2) calendar month cycle; “quarter” (or “quarterly”) is defined herein as a three (3) calendar month cycle; and “year” (or “annual” or “annually”) is defined as a twelve (12) calendar month cycle. Any time reference means Eastern Time.

6.3.2 Subject to the terms in Section 6.3.7 and 7.2 below, your Audiobook membership will continue automatically at the fee rate applicable to the Audiobook Service Level you have selected unless terminated by eMusic or until you notify eMusic of your decision to cancel your Audiobook membership. See below the Section entitled “Termination / Cancellation” for cancellation instructions. All Audiobook Service Levels require a commitment for a minimum period(s) of time (“Audiobook Service Level Period”) and, consequently, cannot be cancelled until the end of the Audiobook Service Level Period. You may, at any time during your Audiobook Service Level Period, set your Audiobook account to cancel, or select another monthly, bi-monthly, quarterly, or annual Audiobook Service Level Period into which to renew, effective at the end of your then-current Audiobook Service Level Period. At the end of your monthly, bi-monthly, quarterly, or annual Audiobook Service Level Period(s), your Audiobook membership will automatically renew and you will be billed for a monthly, bi-monthly, quarterly, or annual Audiobook Service Level respectively at your then current Audiobook Service Level, unless you elect to terminate the Audiobook Service or enroll in another Audiobook Service Level. eMusic reserves the right to not automatically renew your Audiobook membership.

6.3.3 If, when registering, you signed up for an Audiobook membership with an “Audiobook Trial Period,” you will be allowed a period during which you can try out the Audiobook Service. Only one Audiobook Trial Period is permitted per person. The Audiobook Trial Period will expire upon the last day of the number of days indicated in the Audiobook Trial Period offer concerned as calculated in Eastern Time, or, if earlier, the moment on which you download more than the number of Free Audiobook Trial Credit(s) indicated in such offer (“Expiration of the Audiobook Trial Period”). (Please refer to the confirmation provided on the site and via email for the specific terms of your Audiobook Trial Period). Please note that some audiobooks will require multiple credits to download and may exceed your Free Audiobook Trial Credits. If you terminate the Audiobook Service prior to the Expiration of the Audiobook Trial Period, you will not have any further obligation with respect to the version of the Audiobook Service to which you have committed and any remaining Free Audiobook Trial Credits will expire. IF YOU DO NOT CANCEL ANY AUDIOBOOK TRIAL PERIOD WHICH APPLIES, THEN ON EXPIRY OF IT, OR ALTERNATIVELY IF YOU EXCEED THE ALLOWABLE NUMBER OF CREDITS DURING YOUR AUDIOBOOK TRIAL PERIOD, YOU WILL BE AUTOMATICALLY ENROLLED IN AN EMUSIC AUDIOBOOK MEMBERSHIP AND BILLED BASED ON THE PAYMENT PLAN YOU SELECTED WHEN YOU REGISTERED (OR AS YOU MAY HAVE UPDATED THROUGH THE “YOUR ACCOUNT” SECTION OF THE AUDIOBOOK SERVICE). By signing up to an Audiobook Trial Period, you understand and agree that: (i) you will be required to provide billing payment method upon registration, and (ii) eMusic will obtain a pre-authorization for the fee amount that you will be charged at the Expiration of the Audiobook Trial Period. It is possible that some financial institutions may perceive these requested amounts as actual pending charges. These are not actual charges however, and you are solely responsible for any rules that your credit card company applies to them, such as overdraft fees. Free Audiobook Trial Credits are only valid during Audiobook Trial Period; you shall forfeit any Free Audiobook Trial Credits not used during the Audiobook Trial Period.

6.3.4 Each month / 2-month / quarter / year (as applicable) during the term of this Agreement following the Expiration of the Audiobook Trial Period, the fees for use of the Audiobook Service will be billed automatically to the credit card you designated during the Audiobook Service registration process or subsequently provided to eMusic. Under any Audiobook Service Level, any unused credits in each cycle do not carry over to the following cycle and are forfeited, unless your Audiobook membership expressly allows rollover (Unused Audiobook credits from your Audiobook Trial Period will not be rolled over under any plan or for any other reason. You must use such credits during your Audiobook Trial Period or they will be forfeited.). You agree to pay or have paid all fees and charges incurred in connection with your IDs for the Audiobook Service (including any applicable taxes) at the rates in effect when the charges were incurred. All fees and charges are nonrefundable. If you want to designate a different credit card or there is a change in credit card validity or expiration date, or if you believe someone has accessed the Audiobook Service using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com.

6.3.5 Payment must be made by a credit card accepted by eMusic or any other methods of payment as eMusic may accept from time to time. Your credit card will be billed monthly / bi-monthly / quarterly / annually (as applicable) in advance commencing on your Expiration of the Audiobook Trial Period or on registration if you do not benefit from an Audiobook Trial Period and continuing thereafter on a monthly / bi-monthly / quarterly / annually basis (as applicable) on the last day of the one (1) calendar month for the one (1) calendar month cycle/last day of the second (2nd) calendar month for the two (2) calendar month cycle/last day of the third (3rd) calendar month for the three (3) calendar month cycle/last day of the twelfth (12th) calendar month for the twelve (12) calendar month cycle (as applicable, respectively) following the expiration of the preceding audiobook billing period (“Audiobook Billing Date”). Paid Audiobook memberships automatically renew throughout the day, at or around the time you sign-up to it. So you will be charged prior to 11:59pm ET on your Audiobook Billing Date. If eMusic does not receive payment from the credit card issuer or its agent, you agree to pay all amounts due upon demand by eMusic. Your card issuer agreement governs your use of your designated card in connection with the Audiobook Service, and you must refer to that agreement and not this Agreement to determine your rights and liabilities as a cardholder. YOU, AND NOT EMUSIC, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS BILLED TO YOUR CREDIT CARD BY A THIRD PARTY, WHICH WERE NOT AUTHORIZED BY YOU.

6.3.6 If eMusic does not receive the full amount of your Audiobook Service account balance within thirty (30) days of the Audiobook Billing Date, a late payment charge of one and one-half percent (1.5%) per 30 day cycle (or the highest amount allowed by law, whichever is lower) may be added to your bill and immediately become due and payable. Unless you notify eMusic of any discrepancies within sixty (60) days after they first appear on your account statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release eMusic from all liabilities and claim of loss resulting from any error or discrepancy that is not reported to eMusic within sixty (60) days of its first appearance on an invoice or credit card statement.

6.3.7 You agree to pay eMusic all reasonable attorney’s fees and costs incurred by eMusic to collect any past due amounts. Your Audiobook Account may be deactivated without further notice 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 Audiobook membership.

6.3.8.1 To End Users in the US, EU, and UK territories, the fees, charges and payments hereunder do not include, and you are solely responsible for paying, any taxes, duties, government levies or other charges imposed by a taxing or other regulatory authority relating to your use of the Service. You are solely responsible for arranging payment for any and all additional or premium charges for your use of any third party services via the Service.

6.3.8.2 To End Users in the Canadian territories, the fees, charges, and payments hereunder are inclusive of any applicable VAT, taxes, and other charges imposed by a taxing or other regulatory authority relating to your use of the Service.

6.3.9 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS AUDIOBOOK FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY EMUSIC, EFFECTIVE THIRTY (30) DAYS AFTER AN ONLINE POSTING AT http://www.emusic.com. AT EMUSIC’S SOLE DISCRETION, EMUSIC MAY ADDITIONALLY PROVIDE NOTICE OF ANY SUCH CHANGE VIA EMAIL. If any such change is unacceptable to you, you may cancel your membership to the Audiobook Service, as provided in Section 7 below. YOUR CONTINUED USE OF THE AUDIOBOOK SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.

6.3.10 Upgrade/downgrade: Once you have entered into a paid Audiobook membership, you may upgrade or downgrade your chosen Audiobook Service Level. Downgrade means that you are selecting any lower Audiobook Service Level. Upgrade means that you are selecting any higher Audiobook Service Level. Downgrade can only be effective at the end of your then-current Audiobook Service Level Period. At your option, upgrade can be effective either immediately or at the end of your then-current Audiobook Service Level Period. For End Users enrolled in a monthly Audiobook Service Level, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded Audiobook Service Level and your existing Audiobook Service Level and you agree to receive the difference in credits between your new upgraded Audiobook Service Level and your existing Audiobook Service Level. For example, an End User who registered for the “eMusic Audiobook Basic” plan, who upgrades to the “eMusic Audiobook Plus” plan will pay the difference between US$21.99 and US$11.99 (i.e., US$10.00) / CAN$21.99 and CAN$11.99 (i.e., CAN$10.00) / EURO 21.99 and EURO 11.99 (i.e., EURO 10.00) / GBP 14.99 and GBP 7.99 (i.e., GBP 7.00), and will receive one (1) additional credit representing the difference between 2 credits and 1 credit. For End Users enrolled in an annual Audiobook Service Level, if you decide to upgrade immediately, you will be credited with the trade in value of your existing annual Audiobook Service Level as a discount on your new annual Audiobook Service Level. The trade in value is calculated by taking the total price of the current annual Audiobook Service Level, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the Audiobook Service Level. For example, trade in value for a “eMusic Audiobook Basic Annual” Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is $114.99 divided by 12, then multiplied by 6, which equals $57.49 / trade in value for a “eMusic Audiobook Basic Annual” Audiobook Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is CAN$114.99 divided by 12, then multiplied by 6, which equals CAN$57.49 / trade in value for an “eMusic Audiobook Basic Annual” subscription with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is EURO 115.10 divided by twelve, then multiplied by 6, which equals EURO 57.54 / trade in value for a “eMusic Audiobook Basic Annual” Audiobook Service Level with 6 complete months remaining (the 6 months remaining excludes the month that the member is in) is GBP 76.70 divided by twelve, then multiplied by 6, which equals GBP 38.34. After the upgrade is effective, you agree to pay the fees designated for the Audiobook Service Level you upgraded to in accordance with Your Account, which can be found at https://www.emusic.com/account/index.html, and in accordance with this section 6.2.

6.3.11 eMusic may allow you to re-download each of your previously purchased audiobooks a limited number of times for any technical reasons at no additional charge; nonetheless, if you exceed a reasonable number of re-downloads (as deemed by eMusic) on any given audiobook(s), you will be required to re-purchase such audiobook(s).

6.4 Subject to certain limitations, eMusic allows you to place your paid Account(s) on hold for a certain period of time (e.g.,1, 2, or 3 calendar months) (“Hold Period”) starting the day before the next cycle associated with your Music or Audiobook Service Level (i.e., the next month if monthly Service level, the next quarter if quarterly Service level or the next 6-month if semiannual Service level), except for annual Service Levels for which the Hold Period will start the day before the next one calendar month cycle. During your Hold Period, you will not be charged and you will not be able to download any content available on the eMusic Service. At the end of your Hold Period, your monthly, bi-monthly, quarterly, or semi-annual account will be re-activated and you will be charged the fee associated with your current Service level. At the end of your Hold Period, your annual account will be re-activated and, if your annual Service Level reaches its renewal period during the Hold Period, you will be charged the fee associated with such Service level, in accordance with section 6.2 and 6.3 above. Note that if you have both a music Service account and an audiobook Service account, both accounts will be placed on hold during the Hold Period.

7.         TERMINATION/CANCELLATION/DISTANCE SELLING

7.1 To cancel your eMusic Account, please visit https://www.emusic.com/account/cancel.html or contact eMusic’s Customer Service by email (cancelme@emusic.com). If you cancel your Account, eMusic will not refund any remaining portion of your unused fees, and any unused Funds, Audiobook Credits, Loose Change, or any other unused funds or credits in your account will be forfeited. Cancellation of a paid Account will take effect at the end of the billing period during which you deliver notice to eMusic. Please note that, following cancellation of your Account, you will not be able to download media any more.

7.2 We may terminate this Agreement, and/or restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement in any way (or, to the extent the law permits, we suspect that you have done so), and it will not limit any other rights or remedies which are available to us.

7.3 You may terminate this Agreement by providing us with written notice of your termination and ceasing to use Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease. In US and Canadian territories, termination is your sole right and exclusive remedy if you are not satisfied with the Service.

7.4 Termination of this Agreement shall not relieve you of any obligations to pay accrued charges, including any prorated charges accrued for the billing cycle in which this Agreement is terminated.

7.5 In applicable territories, the Consumer Protection (Distance Selling) Regulations 2000 (“Regulations”) give consumers the right to cancel orders for services during the period of seven working days after the day on which provision of the service being provided commences. However under the exceptions to these Regulations, you agree that this right of cancellation does not apply. You have a right to terminate the Service during a Trial Period (if any) as outlined at 6.1.3 and 6.2.3, or otherwise at any time as outlined at 7.3 above.

7.6 Without limitation of any other provisions hereof regarding termination, we reserve the right to terminate your use of the Service, without cause, upon reasonable notice. If such termination occurs in the middle of your paid Service Level Period and you have not exhausted the Funds or Audiobook credits permitted to you under the applicable payment plan, we shall refund to you a share of your prepaid fees for the period prorated for the number of remaining unused Funds or Audiobook credits.

8.         INTELLECTUAL PROPERTY RIGHTS

8.1 Only you may access the Service using your IDs, unless otherwise agreed to in writing by eMusic. The content available through the Service is the property of eMusic or its licensors and is protected by applicable laws and regulations, including but not limited to copyright, database right, and other proprietary and intellectual property laws. All software used on the eMusic Site is owned or licensed by eMusic and is protected by copyright laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to modify, reproduce, retransmit, transfer, distribute, disseminate, sell, broadcast, perform, create derivative works from, make available to third parties or circulate the content received through the Service to anyone or to exploit any such content for commercial or noncommercial purposes without the express prior written consent of eMusic. You further agree not to make use of the Content in a manner that would infringe the copyright therein.

8.2 You acknowledge that eMusic retains exclusive ownership of the Service and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, database rights, trade secrets or trademarks with respect to the Service or its contents, and eMusic reserves all rights not expressly granted hereunder. You shall promptly notify eMusic in writing upon your discovery of any unauthorized use or infringement of the Service (or its contents) or eMusic’s patent, copyright, database right, trade secret, trademarks or other intellectual property rights. The Service contains proprietary and confidential information that is protected by copyright laws and international treaty provisions.

8.3 By posting messages, submitting reviews, inputting data, suggesting playlists, suggesting ideas or engaging in any other form of communication through the Service (collectively referred herein as “User Material”), you are not forfeiting any ownership rights in such User Material and you continue to retain all of the same ownership rights. By submitting or posting User Material, you irrevocably grant eMusic a fully-paid, royalty-free, sub-licensable, transferable license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publish any such content and all intellectual property rights associated therewith, through the world in any media formats and any media channel now known or hereinafter devised for any promotional or commercial purposes, during the full term of copyright and all renewals and extensions thereof, without any obligation to make any payment to you or others or to give you credit. In addition, to the extent permitted by law, you waive all moral rights in your User Material. In the event eMusic decides to give you credit, at eMusic’s sole discretion, you further grant eMusic the right to use your name and likeness under the license contained in this paragraph in association with your User Material and the promotion and advertising thereof. You also waive any right to inspect or approve any final product.

8.4 By submitting or posting the User Material, you represent and warrant that you own the User Material. You also represent and warrant that the posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights. By submitting or posting the User Material, you agree that your submission of the User Material does not in any way implicate you as an employee, agent, or partner of eMusic. Finally, you agree to comply with eMusic’s community rules. By submitting or posting the User Material, you further forever release and discharge eMusic, its affiliates, advertising agency, successors, assigns and their respective officers, employees, agents from any and all claims, actions and demands arising out of, or in connection with, the use of your User Materials, your name and biographical data, including, without limitation, any and all claims for invasion of privacy and libel. This release shall inure to the benefit of the assigns, licensees and legal representatives of eMusic.

9.         COPYRIGHT INFRINGEMENT

If you are a copyright owner and believe that any of the copyrighted material that is directly available via the Services is an infringement of your copyrighted work, please let us know.

Pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 United States Code § 512(c)(3), a notice of alleged copyright infringement should be sent to eMusic’s designated copyright agent at the following address:

eMusic.com Inc.
Attn: Legal Department, Copyright Agent
625 Broadway, 2nd Fl.
New York, NY 10012
copyrightagent@emusic.com

A notification of alleged copyright infringement must be addressed to eMusic’s copyright agent as 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 the Service (please include a URL);
  • 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; and
  • 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.

eMusic may, in appropriate circumstances, terminate the accounts of any users who repeatedly use the Services to infringe copyright.

10.       THIRD PARTY SITES AND INFORMATION

10.1 Our website may include links to other sites on the Internet that are owned and operated by online merchants and other third parties, and which may contain references to information, software, materials, products, and/or services provided by the third party. These third party sites may contain information that some people consider inappropriate or offensive. You acknowledge that these third party sites are beyond our control, and we are not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or webmaster for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is undertaken at your own risk, and is subject to the terms of use and privacy policies of each site. We include third party links or references merely as a convenience to our users, and we do not endorse nor assume any liability for the third party websites, services, or products.

10.2 Our website may include User Material which may be objectionable, unlawful, inaccurate, or inappropriate. eMusic does not endorse any User Material, and User Material does not reflect the opinions or policies of eMusic. We reserve the right, but have no obligation, to monitor User Material and to restrict or remove User Material that we determine, in our sole discretion, is inappropriate or for any other reason. In no event does eMusic assume any responsibility or liability whatsoever for any User Material, and you agree to waive any legal or equitable rights or remedies you may have against eMusic with respect to such User Material. Please report inappropriate User Material by emailing us at editor@emusic.com.

11.       LINKING TO EMUSIC WEBSITE AND WIDGET POLICY

Any web site that links to our website or on which you include the widget: (a) must not frame, surround, obfuscate or create a browser or border environment around any of the Content of our website; (b) may link to, but not replicate, any of the Content of our website; (c) must not imply that eMusic or our website or any artist or performer are endorsing or sponsoring it or its products, unless eMusic has given its prior written consent; (d) must not present false information about eMusic or its Service; (e) must not use any eMusic Services or trademarks, except as expressly permitted in these Terms of Use and with the prior written permission from eMusic; (f) must not contain content that is illegal, obscene or defamatory, or that could be construed as distasteful, offensive or controversial; and (g) must not support, endorse or encourage piracy or the unauthorized exploitation of intellectual property rights. “Content” means any present, past and future content of the Service, including, but not limited to, software graphics, text, images, audio, designs, databases, trademarks, logos, domain names, trade names, service mark, any traded identities, any and all copyrighted materials (including source and object code), the “look and feel” of our website. By linking to our website, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in this Agreement, we reserve the right to deny permission to link to our website for any reason in our sole and absolute discretion.

eMusic reserves the right to remove links or block the eMusic widget at any time and for any reason in its absolute discretion.

The eMusic widget is not provided for commercial use, distribution or exploitation. If you are the operator of a commercial website and would like to include the eMusic widget in your website, or if you would like to use the widget for commercial purposes, please contact us by emailing legalrequest@emusic.com

12.       DISCLAIMER OF WARRANTIES

12.1 YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND AN “AS AVAILABLE” BASIS. WE DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE EMUSIC SITE, THE EMUSIC APP AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE EMUSIC SITE, EMUSIC APP OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12.2 There may be links that will let you leave the eMusic Site or that will let you access the eMusic Site from third party sites. Linked third party sites are not under our control and we are not responsible for the contents of any such linked site or any link contained in such a linked site. Existence of links to other third party sites is not an endorsement by us in favor of such site or the products or services contained in any linked site. To the extent that the eMusic Site contains links to or may be accessed from outside services and resources, the availability and content of which we do not control, any concerns regarding any such service or resource or any link thereto should be directed to the particular outside service or resource.

13.       LIMITATION OF LIABILITY

13.1 IN THE US AND CANADIAN TERRITORIES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER EMUSIC, ITS LICENSORS, SUPPLIERS, PARTNERS, AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT EMUSIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

13.2 IN THE EU AND UK TERRITORIES, SAVE IN THE CASE OF DEATH OR PERSONAL INJURY DUE TO OUR NEGLIGENCE OR WHERE WE HAVE ACTED FRAUDULENTLY, OUR TOTAL LIABILITY TO YOU FOR ANY DIRECT LOSSES SUFFERED BY YOU WILL BE LIMITED TO THE AMOUNT OF YOUR RECURRING FEE FOR ONE MUSIC SERVICE LEVEL PERIOD, PURSUANT TO YOUR MUSIC SERVICE LEVEL AT THE TIME THE DIRECT LOSS WAS SUFFERED BY YOU. WE WILL ONLY BE LIABLE FOR LOSSES WHICH WERE FORESEEABLE TO BOTH YOU AND TO US AS A CONSEQUENCE OF US BREACHING THESE TERMS AND CONDITIONS BY OUR OWN NEGLIGENCE. FOR THE AVOIDANCE OF DOUBT WE WILL NOT BE RESPONSIBLE FOR ANY BUSINESS LOSS (INCLUDING LOSS OF PROFITS, REVENUE, CONTRACTS, ANTICIPATED SAVINGS, DATA, GOODWILL OR WASTED EXPENDITURE) OR ANY OTHER INDIRECT OR CONSEQUENTIAL LOSS THAT WAS NOT REASONABLY FORESEEABLE TO BOTH YOU AND US WHEN YOU COMMENCED USING THE EMUSIC SITE

14.       INDEMNITY

You agree to defend, indemnify and hold eMusic, its affiliated companies and their employees, contractors, officers, and directors harmless against any losses, expenses, costs or damages (including, to the extent permitted by law, our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation or proceedings) arising from, incurred as a result of, or in any manner related to any claim or action based upon, to the maximum extent permitted by applicable law, (a) your breach of, or failure to comply with, the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your IDs. We may, in our discretion, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.

15.       CHOICE OF LAW AND CONSENT TO JURISDICTION

To End Users who registered for eMusic in US and Canadian territories: this Agreement is governed by the laws of the State of New York, U.S.A., without regard to its conflicts of law provisions; and you hereby consent to the exclusive jurisdiction of and venue in the federal and state courts located in New York County, New York, U.S.A. with respect to all disputes arising out of or relating to the Service. In addition, you hereby consent to the exclusive jurisdiction of and venue in such courts for any action commenced by you against us (or our affiliates).

To End Users who registered for eMusic in EU and UK territories: this Agreement is governed by English law. You agree to submit to the non-exclusive jurisdiction of the English courts.

16.       OTHER IMPORTANT PROVISIONS

16.1 Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this Section.

16.2 You shall not use the Service in any manner contrary to applicable laws and/or regulations. eMusic expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) by you and reserves the right to terminate your Service immediately upon notice of your failure to comply with any such laws and/or regulations.

16.3 Our performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.

16.4.1 In US, EU, and UK territories, if any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect.

16.4.2 In Canadian territories, if any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then such provision shall be severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.

16.5 No failure or delay in enforcing any provision, exercising any option or requiring performance, shall be construed to be a waiver of that or any other right in connection with this Agreement.

16.6 You may not assign your rights under this Agreement without our prior written permission and any attempt by you to do so shall be void from inception.

16.7 This Agreement, together with our Privacy Policy and any other rules, regulations, procedures and policies which we refer to and which are hereby incorporated herein by this reference, constitutes the entire agreement between you and us with respect to the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and us with respect to the Service.

16.8 Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; provided, however, no action arising out of this Agreement or your use of the Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause of action arose) (subject to any shorter limitation applicable pursuant to Section 16.9 above) and you hereby waive any longer statute of limitations that may be permitted by law.

16.9 To the extent it may be applicable, you agree with us to opt out from and expressly exclude any applicability of the Uniform Computer Information Transactions Act.

16.10 A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

16.11 In the event you have any questions, concerns, or complaints about the Service, you should contact us via the Contact Us link on the Site.