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Terms of Use

eMusic.com Terms of Use

Last updated February 19, 2014

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 SUBSCRIPTION OR PER-DOWNLOAD SERVICE 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.

When we refer to the “use” of the Services in this Agreement, we mean any actual or attempted access or use of the 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 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 the Service
2. Modification
3. Your Registration Obligations
4. eMusic Privacy Policy
5. Technological and Use Limitations
6. Term, Fees, Payments; Trial Period Provisions
6.1 Per-Download Music Service
6.2 Music Subscription
6.3 Free Music Streaming Membership
6.4 Audiobook Subscription
6.5 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, downloading, and/or streaming media in a DRM-free file format. The Service offers multiple subscription plans whereby, for a certain recurring fee and subject to certain limitations as described herein, you are granted specified download and/or streaming rights to our catalog of DRM-free media files. The Service also includes the ability to purchase MP3 music downloads independent from any subscription plan in exchange for the payment of a per-download purchase price and subject to certain limitations as described herein. The Service may also offer membership plans whereby, subject to certain limitations as described herein, you may receive limited access to some streaming media at no charge. You understand and agree that these memberships 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 add, delete or modify any of the aspects of our Service and/or any of the terms and conditions contained in this Agreement at any time in our sole discretion. We may notify you of any such changes by posting a change notice on our site at http://www.emusic.com and/or by sending you an email at the email address associated with your Service account, at eMusic’s sole discretion. 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.

 


3. YOUR REGISTRATION OBLIGATIONS

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 as required for your use of and access to the Service, as applicable. Once you subscribe to the Service, you shall receive a unique user ID and password in connection with your account (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. You acknowledge that the complete privacy of your data and messages transmitted while using the Service cannot be guaranteed.

 


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.

 


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 file obtained through the streaming portion of the Service to your device is solely intended for real-time listening 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, downloading, or streaming of files. You may not use any method or technology to record, capture, or otherwise copy and/or reproduce any file obtained through the streaming portion of the Service. You may not use any script or other mechanism to collect, scrape, or gather any information or data from the Service.

 

5.4 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, 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 local, state, 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 promotions or advertising. 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 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 or stream, some media may be limited to download or streaming only, 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.

 

5.7 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.

 

5.8 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.

 

5.9 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 includes also the ability for you to purchase music downloads independently from any music subscription 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 major credit card accepted by eMusic (currently, VISA, MasterCard, American Express and Discover), 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 the paid music subscription of the Service, 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 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 Per-download sales of MP3s of Sony Music products are sold directly by Sony Music Entertainment via eMusic.

 

6.1.10 After November 2010, when eMusic switched its system from credit to currency, any unused music credits in an eMusic member’s account will be converted according to the following rules:
6.1.10.1 Any credits granted in association with a Music Trial Period will be converted at a rate of $0.50 per unused credit in your account as of the day of the switch to a currency system;
6.1.10.2 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 will be converted at a rate of $0.50 per unused credit in your account as of the day of the switch to a currency system;
6.1.10.3 Any “Booster Pack” credits will be converted at a rate of $0.60 per unused credit in your account as of the day of the switch to a currency system;
6.1.10.4 Any “Code” credits offered by an eMusic’s marketing partner will be converted at a rate of $0.89 per unused credit in your account as of the day of the switch to a currency system; and
6.1.10.5 Any other unused credits other than the ones previously mentioned in this section 6.1.15, will be converted at a minimum rate of $0.50 per unused credit in your account as of the day of the switch to a currency system.


6.2 Music Subscription

 

6.2.1 By registering for the paid music subscription Service, you agree to pay the recurring fees designated for the music subscription Service level 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. additional charges may include purchases you make (i.e., gift subscription and/or Booster Packs) or service level changes you request. Subject to your right to terminate the music subscription Service prior to the Expiration of the Music Trial Period (defined hereinafter), if any, as described 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 which includes free bonus eMusic dollars (eMusic dollars shall be referred to as “Dollars” herein) as part of your first paid music subscription period, you will be charged upon registration and are responsible for paying fees for the music subscription Service as described in the preceding two sentences. The term “month” (or “monthly”) is defined herein as a 30-day cycle; “quarter” (or “quarterly”) is defined herein as a 90-day cycle;”semiannual” (or “semiannually” or “6-month”) is defined as a 180-day cycle; “year” (or “annual” or “annually”) is defined as a 360-day cycle; and “biennial” (or “biennially” or “two-year”) is defined herein as a 720-day cycle. Any time reference means Eastern Time.

 

6.2.2 If you have downloaded some but not all of the individual tracks of a particular album as part of your paid music subscription, 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 the 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 dollars, charged for the download of a full album.

 

6.2.4 Subject to the terms in Section 6.2.10 below, your paid music subscription will continue automatically at the fee rate applicable to the music subscription Service, which you have selected unless terminated by eMusic or until you notify eMusic of your decision to cancel your subscription to the music subscription Service. PLEASE NOTE THAT IF YOU DO NOT CANCEL ANY MUSIC TRIAL PERIOD (DESCRIBED AT 6.2.5 BELOW) WHICH APPLIES, THEN ON EXPIRY OF IT OR ALTERNATIVELY IF YOU EXCEED THE ALLOWABLE FREE TRIAL DOLLARS GRANTED DURING YOUR MUSIC TRIAL PERIOD YOU WILL BE AUTOMATICALLY SUBSCRIBED TO EMUSIC. See below the Section entitled “Termination / Cancellation” for cancellation instructions. All paid music subscriptions 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 subscription plan into which to renew, effective at the end of your then-current music plan. At the end of your monthly, quarterly, semiannual, or annual music subscription period(s), your paid music subscription will automatically renew and you will be billed for a monthly, quarterly, semiannual, or annual music subscription respectively at your then-current plan level, unless you elect to terminate the music subscription Service or enroll in another version of the music Service. At the end of your current biennial music subscription period, your paid music subscription will automatically renew into an annual paid music subscription plan comparable to your biennial paid music subscription plan, and you will be billed for such annual paid music subscription plan. eMusic reserves the right to not automatically renew your paid music subscription.

 

6.2.5 If, when registering, you signed up for a paid music subscription with a “Music Trial Period,” you will be allowed a period during which you can try out the paid music subscription Service. Only one Music Trial Period is permitted per person. Certain tracks or album may not be available for download and/or stream 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 Dollars” 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 the music subscription Service prior to the Expiration of the Music Trial Period, you will not have any further obligation with respect to the version of the paid music subscription Service to which you have committed and any remaining Music Trial Period credits will expire. If you do not terminate and do nothing, at the Expiration of the Music Trial Period, you will be automatically subscribed to eMusic paid music subscription membership and billed based on the payment plan selected when you registered (or as you may have updated through the “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; (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 Dollars” are only valid during Music Trial Period; you shall forfeit any Free Trial Dollars not used during the Music Trial Period.

 

6.2.6 If, when registering, you signed up for a paid music subscription with additional “New Member Bonus” offered for your continued enrollment to the paid music Service during a certain period of time (e.g., an additional $15 per month for 3 months, or an additional $20 with your first month paid music subscription)(“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 credit applicable to the music subscription Service level you selected. Upon cancellation or termination of your subscription to the paid music subscription Service 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-month / year / two-year (as applicable) during the term of this Agreement following the Expiration of the Music Trial Period, the fees for use of the paid music subscription Service will be billed automatically to the credit card you designated during the paid music subscription Service registration process or subsequently provided to eMusic. Under any music subscription Service level, any unused balance greater than or equal to $0.49 in each cycle does not carry over to the following cycle and are forfeited, unless your music subscription plan expressly allows rollover. Under any music subscription Service level, any unused balance less than $0.49 in each cycle (“Loose Change”) will carry over solely to the following cycle. (Unused Free Trial Dollars, New Member Bonus, Booster Pack Dollars, any reward Dollars or any courtesy Dollars, will not be rolled over under any plan or for any other reason, regardless of the Dollars amount. You must use such Dollars 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 subscription 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 music subscription Service using your IDs without your authorization, you must contact eMusic immediately at service@emusic.com.

 

6.2.8 Payment must be made by a major credit card accepted by eMusic (currently, VISA, MasterCard, American Express and Discover), 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 subscription 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 thirtieth (30th) / ninetieth (90th) / one hundred and eightieth (180th) / three hundred and sixtieth (360th) / seven hundred and twentieth (720th) day (as applicable, respectively) following the expiration of the preceding music billing period (“Music Billing Date”). Paid music subscriptions 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 music subscription Service account balance within thirty (30) days of the Music Billing Date, 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 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 dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your music Service account.

 

6.2.11 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 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 music Service.

 

6.2.12 EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS MUSIC SUBCRIPTION 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 emusic.com. AT EMUSIC’S SOLE DISCRETION, EMUSIC MAY ALTERNATIVELY PROVIDE NOTICE OF ANY SUCH CHANGE VIA EMAIL, EFFECTIVE THIRTY (30) DAYS FROM THE DATE OF THE EMAIL INFORMING YOU OF ANY SUCH CHANGE. If any such change is unacceptable to you, you may cancel your subscription to the music subscription Service, as provided in Section 7 below. YOUR CONTINUED USE OF THE MUSIC SUBCRIPTION 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 subscription Service level, you may upgrade or downgrade. Downgrade means that you are selecting any lower subscription tier. Upgrade means that you are selecting any higher subscription tier. 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 subscriptions, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded music subscription and your existing music subscription and you agree to receive the difference in credit between your new upgraded music subscription and your existing music subscription. For example, a subscriber of the “eMusic Basic” plan who upgrades to the “eMusic Premium” plan will pay the difference between $20.99 and $11.99 (i.e., $9.00), and will receive $11 worth of additional credit representing the difference between $20.99 and $11.99, plus $2 of Bonus Dollars. For annual music subscriptions, if you decide to upgrade immediately, you will be credited with the trade in value of your existing annual music subscription as a discount on your new annual music subscription. The trade in value is calculated by taking the total price of the current annual music subscription, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the music subscription. For example, trade in value for an a “eMusic Basic Annual” music subscription 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. 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 After November 2010, when eMusic switched its system from credit to currency, any unused music credits in an eMusic member’s account will be converted according to the following rules:
6.2.15.1 Any credits granted in association with a Music Trial Period will be converted at a rate of $0.50 per unused credit in your account as of the day of the switch to a currency system;
6.2.15.2 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 will be converted at a rate of $0.50 per unused credit in your account as of the day of the switch to a currency system;
6.2.15.3 Any “Booster Pack” credits will be converted at a rate of $0.60 per unused credit in your account as of the day of the switch to a currency system;
6.2.15.4 Any “Code” credits offered by an eMusic’s marketing partner will be converted at a rate of $0.89 per unused credit in your account as of the day of the switch to a currency system; and
6.2.15.5 Any other unused credits other than the ones previously mentioned in this section 6.1.15, will be converted at a minimum rate of $0.50 per unused credit in your account as of the day of the switch to a currency system.

 


6.3 Free music streaming membership:

 

6.3.1 If, when registering, you signed up for a free music streaming subscription, you will be allowed a period during which you are offered limited access to streaming media. Only one free music streaming subscription is permitted per person. When registering to a free music streaming subscription, you will be required to provide certain Registration Data, including a valid email address and a password. Free music streaming subscription does not require you to furnish any credit card or other payment information to eMusic. In creating a free music streaming subscription account, you consent to receive, from time to time, special email offers including offers to upgrade your free membership to a paid membership. eMusic reserves the right to terminate your free music streaming subscription at any time for any or no reason.

 

6.3.2 eMusic reserves the right, at any time, to change its free music streaming membership, including to request the payment of fees for access to the streaming portion of the music Service.

 


6.4 Audiobook Subscription:

 

6.4.1 By registering for the audiobook Service, you agree to pay the recurring fees designated for the audiobook Service level 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 6.4. Additional charges may include purchases you make (i.e., gift subscription 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), if any, as described in Section 6.4.3 below, 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 subscription 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 30-day cycle; “bi-monthly” (or “2-month”) is defined as a 60-day cycle; “quarter” (or “quarterly”) is defined herein as a 90-day cycle”; and “year” (or “annual” or “annually”) is defined as a 360-day cycle. Any time reference means Eastern Time.

 

6.4.2 Subject to the terms in Section 6.4.7 below, your audiobook subscription will continue automatically at the fee rate applicable to the audiobook Service, which you have selected unless terminated by eMusic or until you notify eMusic of your decision to cancel your subscription to the audiobook Service. PLEASE NOTE THAT IF YOU DO NOT CANCEL ANY AUDIOBOOK TRIAL PERIOD (DESCRIBED AT 6.4.3 BELOW) 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 SUBSCRIBED TO EMUSIC. See below the Section entitled “Termination / Cancellation” for cancellation instructions. All audiobook subscriptions 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 subscription period, set your audiobook account to cancel, or select another monthly, bi-monthly, quarterly , or annual audiobook subscription plan into which to renew, effective at the end of your then-current audiobook plan. At the end of your monthly, bi-monthly, quarterly, or annual audiobook subscription period(s), your audiobook subscription will automatically renew and you will be billed for a monthly, bi-monthly, quarterly, or annual audiobook subscription respectively at your then current audiobook plan level, unless you elect to terminate the audiobook Service or enroll in another version of the audiobook Service, eMusic reserves the right to not automatically renew your audiobook subscription.

 

6.4.3 If, when registering, you signed up for an audiobook subscription 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 audiobook 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 Audiobook Trial Period credits will expire. If you do not terminate and do nothing, at the Expiration of the Audiobook Trial Period, you will be automatically subscribed to eMusic audiobook membership and billed based on the payment plan 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.

 

6.4.4 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 30-day cycle do not carry over to the following cycle and are forfeited; unless your audiobook subscription plan 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.

 

6.4.5 Payment must be made by a major credit card accepted by eMusic (currently, VISA, MasterCard, American Express and Discover), 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 thirtieth (30th) / sixtieth (60th) / ninetieth (90th) / three hundred and sixtieth (360th) (as applicable, respectively) following the expiration of the preceding audiobook billing period (“Audiobook Billing Date”). Paid audiobook subscriptions 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.

 

6.4.6 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 month (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.

 

6.4.7 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 Service account.

 

6.4.8 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 audiobook 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 audiobook Service.

 

6.4.9 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 emusic.com. AT EMUSIC’S SOLE DISCRETION, EMUSIC MAY ALTERNATIVELY PROVIDE NOTICE OF ANY SUCH CHANGE VIA EMAIL, EFFECTIVE THIRTY (30) DAYS FROM THE DATE OF THE EMAIL INFORMING YOU OF ANY SUCH CHANGE. If any such change is unacceptable to you, you may cancel your subscription 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.

 

6.4.10 Upgrade/downgrade: Once you have entered into a paid audiobook Service level, you may upgrade or downgrade. Downgrade means that you are selecting any lower subscription tier. Upgrade means that you are selecting any higher subscription tier. 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 monthly audiobook subscriptions, if you decide to upgrade immediately, you agree to pay the difference in price between your new upgraded audiobook subscription and your existing audiobook subscription and you agree to receive the difference in credits between your new upgraded audiobook subscription and your existing audiobook subscription. For example, a subscriber of the “eMusic Audiobook Basic” plan who upgrades to the “eMusic Audiobook Plus” plan will pay the difference between $21.99 and $11.99 (i.e., $10.00), and will receive one (1) additional credit representing the difference between 2 credits and 1 credit. For annual audiobook subscriptions, if you decide to upgrade immediately, you will be credited with the trade in value of your existing annual audiobook subscription as a discount on your new annual audiobook subscription. The trade in value is calculated by taking the total price of the current annual audiobook subscription, pro-rating it across 12 months, then multiplying that number by the number of complete months remaining in the audiobook subscription. For example, trade in value for a “eMusic Audiobook Basic Annual” subscription 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. After the upgrade is effective, you agree to pay the fees designated for the audiobook 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 6.2.

 

6.4.11 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).

 


6.5 Subject to certain limitations, eMusic allows you to place your paid subscription Service account(s) on hold for a certain period of time (e.g., 30, 60 or 90 days) (“Hold Period”) starting the day before the next cycle associated with your subscription 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 subscription for which the Hold Period will start the day before the next 30-day cycle. During your Hold Period, you will not be charged and you will not be able to download any content available on eMusic subscription Service. At the end of your Hold Period, your monthly, bi-monthly, quarterly, semi-annual account will be re-activated and you will be charged the fee associated with your current subscription Service level. At the end of your Hold Period, your annual account will be re-activated and, if your annual subscription 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 6.4 above. Note that if you have both a music subscription Service account and an audiobook subscription Service account, both accounts will be placed on hold during the Hold Period.

 


7. TERMINATION/CANCELLATION

7.1 To cancel your subscription account, please visit https://www.emusic.com/account/cancel.html or contact eMusic’s Customer Service by email (cancelme@emusic.com) or phone (+1-866-240-9271 or +1-212-300-2856). If you cancel your paid subscription, eMusic will not refund any remaining portion of your subscription fees, any unused credits (including Loose Change) in your account will be forfeited. Cancellation of paid subscription 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 subscription account, you will not be able to download and/or stream eMusic Radio any more.

 

7.2 We may terminate this Agreement, 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, 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. Termination is your sole right and exclusive remedy if you are not satisfied with the Service. Upon the effective date of any such termination, your right to use the Service shall immediately cease.

 

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 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 subscription period and you have not exhausted the credits permitted to you under the applicable payment plan, we shall refund to you a share of your prepaid subscription fee for the period prorated for the number of remaining unused 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 copyright and other intellectual property laws. Content received through the Service may be viewed, used and played for your personal, non-commercial use only. You agree not to reproduce, retransmit, distribute, disseminate, sell, broadcast, perform, 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, 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, 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 know of 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 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 contain 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. You finally 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 which 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

 

Any web site that links to our website: (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 or without 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.

 


12. DISCLAIMER OF WARRANTIES

 

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.

 


13. LIMITATION OF LIABILITY

 

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 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.

 


14. INDEMNITY

 

You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including 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 (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

 

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).

 


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 local, state or federal law. 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 local, state or federal law.

 

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 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.

 

16.5 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 arose) (subject to any shorter limitation applicable pursuant to Section 6.9 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.