Effective as of SEPTEMBER 29, 2017
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, (“OUR,” “US,” “WE” OR “EMUSIC”), WHICH GOVERNS YOUR USE OF OUR INTERNET-BASED AUDIOBOOK SERVICES TOGETHER WITH ALL INFORMATION, CONTENT, APPLICATIONS, SOFTWARE, PRODUCTS, MATERIALS AND SERVICES MADE AVAILABLE TO YOU THROUGH ESTORIES.COM, 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, YOU ARE CONSENTING TO BECOMING A PARTY TO THIS AGREEMENT, AND YOU ARE AGREEING TO BE BOUND BY AND TO 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 AUDIOBOOK, 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.estories.com/. If any modification is unacceptable to You, You must stop using the Service. Unless otherwise specificallyset forth in our notice, and except as otherwise stated in this Agreement, 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 THE SERVICE
eMusic currently provides the Service for sampling and/or downloading audiobooks
in either DRM or 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 audiobooks. The Service also includes the ability to purchase audiobooks
independent from any paid “Plan Option” (as defined in Section 6.1.1), subject to certain
limitations as described herein. Furthermore, the Service includes the ability to preview
a portion of audiobook downloads, typically 30 second clips, by streaming, in order to test
out the download prior to purchasing same (“eStories 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.estories.com/signup
(“eStories Site”), on an eStories software application (“eStories App”) if possible, 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 following languages: English, French,
German, and Spanish. 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. Your confirmation email will include a link the then current Agreement.
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 You can register for eStories via email address, Facebook, or Google.
3.5 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 eStories Site and eStories 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 eStories 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 eStories 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 eStories 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, or 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 eStories
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 writers, 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.
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. 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
The term “month” (or “monthly”) is defined herein as a one (1) calendar month cycle;
the term “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.
6.1 eStories Membership Plan
6.1.1 By registering for an eStories membership, You agree to pay the recurring fees designated
for the “Plan Option” You select in accordance with Your membership, which can be found at
http://www.estories.com/account and in accordance with this section 6.1. A “Plan Option”
refers to the paid audiobook plan selected by You for your membership to gain access
to the Service. Additional charges may include purchases You make (i.e., gift memberships
and/or Extra Credits, as defined below) or changes you make to your Plan Option. Subject
to Your right to terminate the Service prior to the Expiration of an eStories Trial Period
(defined hereinafter in Section 6.2.1. 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 membership period, You will be
charged upon registration and are responsible for paying fees for the Service as described in
the preceding two sentences.
6.1.2. Subject to the terms in Section 6.1.8 and 8.2 below, Your membership will continue automatically at
the
fee rate applicable to the Plan Option You have selected unless terminated by eMusic or until You notify
eMusic
of Your decision to cancel Your membership. See below the Section entitled “Termination / Cancellation” for
cancellation instructions. All Plan Options require a commitment for a minimum period(s) of time (“Plan
Option
Period”) and, consequently, cannot be terminated until the end of the Plan Option Period. You may, at any
time
during your Plan Option Period, set Your account to cancel at the end of your Plan Option Period, or select
another Plan Option into which to renew, effective at the end of your then-current Plan Option Period. At
the
end of Your Plan Option Period(s), Your membership will automatically renew and You will be billed for a
Plan
Option at Your then current Plan Option, unless You elect to terminate your membership or enroll in another
Plan
Option. For example, if You are enrolled in a monthly Plan Option, then at the end of Your monthly Plan
Option
Period, Your membership will automatically renew and You will be billed for a monthly Plan Option. eMusic
reserves the right to not automatically renew Your membership.
6.1.3. Each Plan Option Period (as applicable) during the term of this Agreement following Your registration
or,
if applicable, the Expiration of Your eStories Trial Period (as defined below), the fees for use of the
Service
will be billed automatically to the credit card or other payment method You designated during the
registration
process or subsequently provided to eMusic. If You do not cancel any eStories Trial Period which applies,
then
on expiry of it, You will be automatically enrolled in an eStories membership and billed based on the Plan
Option You selected when You registered (or as You may have updated through the “your account” section of
the
Service.
6.1.4 If you believe someone has accessed the Service using your IDs without your authorization, you must
contact eMusic immediately at support@estories.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.
6.1.5. Payment must be made be 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, annually, or otherwise pursuant to your
Plan
Option in advance commencing on the Expiration of Your eStories Trial Period or upon registration if You do
not
benefit from an eStories Trial Period, and continuing thereafter on a monthly/annual/otherwise applicable
basis
on the last day of the one (1) calendar month for the one (1) calendar month cycle/last day of the twelfth
(12th) calendar month for the twelve (12) calendar month cycle, or as otherwise applicable, following the
expiration of the preceding audiobook billing period (“Billing Date”). Paid 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
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 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.
6.1.6. If at any time you want to designate a different credit card, or there is a change in
credit card validity or expiration date, you must contact eMusic immediately at support@estories.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.
6.1.7. If eMusic does not receive the full amount of Your account balance within
thirty (30) days of the 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 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.
6.1.8. You agree to pay eMusic all reasonable attorney’s fees and costs incurred by eMusic to collect any
past
due amounts. Your 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 account.
6.1.9.1. If you are an End User in the US, EU, or 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.
6.1.9.2. If you are an End User 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.
6.1.10. EMUSIC RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS 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.estories.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, as provided in Section
8 below. YOUR CONTINUED USE OF THE SERVICE FOLLOWING THE EFFECTIVE DATE OF A CHANGE TO SUCH FEES
AND BILLING METHODS SHALL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGE.
6.1.11. 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). In any other event of technical errors when downloading an audiobook, please contact Customer
Service by sending an email to support@estories.com.
6.2 eStories Trial Period
6.2.1 If, when registering, You signed up for a membership with an “eStories Trial Period,” You will receive
a
Free Trial Credit(s) and be allowed a period during which You can try out the Service. Only one eStories
Trial
Period is permitted per person. The eStories Trial Period will expire upon the last day of the number of
days
indicated in the eStories Trial Period offer concerned as calculated in Eastern Time, (“Expiration of the
eStories Trial Period”). Please refer to the confirmation provided on the site and via email for the
specific
terms of Your eStories Trial Period. Please note that some audiobooks will require multiple credits to
download
and may exceed Your Free Trial Credits. If You attempt to make a purchase during Your eStories Trial Period
and
You have already exceeded Your Free Trial Credits, You will be given the option to begin your membership at
that
time or purchase the audiobook for a dollar value. If You cancel the Service prior to the Expiration of
the
eStories Trial Period, You will not have any further obligation with respect to the Plan Option to which You
have committed and any remaining Free Trial Credits will expire.
6.2.2 IF YOU DO NOT CANCEL ANY ESTORIES TRIAL PERIOD WHICH APPLIES, THEN ON EXPIRY OF IT YOU WILL BE
AUTOMATICALLY ENROLLED IN AN ESTORIES MEMBERSHIP AND BILLED BASED ON THE PLAN OPTION YOU SELECTED WHEN YOU
REGISTERED (OR AS YOU MAY HAVE UPDATED THROUGH THE “YOUR ACCOUNT” SECTION OF THE SERVICE). You may cancel
your
trial by visiting https://www.estoriescom/account/cancel or providing us with written notice of your desire
to
cancel.
6.2.3 By signing up to an eStories Trial Period, You understand and agree that: (i) You will be required to
provide a 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 eStories 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.
6.2.4 Free Trial Credits are only valid during eStories Trial Period; You shall forfeit any Free Trial
Credits
not used during the eStories Trial Period.
6.3 eStories A La Carte Service
6.3.1. The Service may include, subject to territory, the ability for you to purchase audiobooks
independently
from any Plan Option membership. By registering for such A La Carte Service, you agree that you will pay all
fees and charges accrued by or in connection with your IDs for the Service (including, but not limited to,
any
applicable purchase price, taxes, and late fees) at the rates in effect when the charges were incurred. You
further agree that eMusic may charge the method of payment designated during the registration process.
6.3.2. You agree to pay or have paid all fees and charges incurred in connection with Your IDs for the
Service
(including any applicable taxes) at the rates in effect when the charges were incurred.
6.3.3. If you believe someone has accessed the Service using your IDs without your authorization, you must
contact eMusic immediately at support@estories.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.
6.3.4. Payment must be made be 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 audiobook). You agree to pay or have paid all fees and charges incurred in connection with
Your
IDs for the Service (including any applicable taxes) at the rates in effect when the charges were incurred.
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
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.
6.3.5. If at any time you want to designate a different credit card, or there is a change in credit card
validity or expiration date, you must contact eMusic immediately at support@estories.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.
6.3.6. If eMusic does not receive the full amount of Your charges on the A La Carte 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.
6.3.7. You agree to pay eMusic all reasonable attorney’s fees and costs incurred by eMusic to collect any
past
due amounts. Your 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 account.
6.3.8.1. If you are an End User in the US, EU, or 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. If you are an End User 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 PURCHASE PRICES ON IT’S A LA CARTE SERVICE. EMUSIC
DOES
NOT PROVIDE PRICE PROTECTION OR REFUNDS IN THE EVENT OF A PRICE REDUCTION OR PROMOTIONAL OFFERING.
6.3.10. In the event you purchase an audiobook via the A La Carte Service but it fails to download
completely,
eMusic may allow you to retry the download by clicking the “retry download” button on the purchase page. In
any
other event of technical errors when downloading an audiobook, please contact Customer Service by clicking
here
or sending an email to support@estories.com.
6.4 Refund Policy
6.4.1 eMusic may allow You to return Your audiobook purchase within 30 days of the purchase date. The refund
You
receive will depend on the manner of purchase. If the audiobook was purchased via Our A La Carte service,
You
will receive back the fees paid for the audiobook. If the audiobook was purchased via Your membership, You
will
receive back the credit(s) used for the audiobook. At no time will You receive a refund for the recurring
fees
associated with Your Plan Option.
6.4.2 eMusic reserves the right, in its sole discretion, to limit the number of refunds allowed to each End
User, including, but not limited to, in cases where eMusic suspects abuse of the refund policy.
6.4.3 Recurring fees associated with your Plan Option are non-refundable.
6.5 Rollover
“Rollover” refers to a credit(s) carrying over into the next calendar month.
6.5.1. Under any Plan Option, unless otherwise specified, any credits received via Your Plan Option that are
unused will Rollover for six (6) calendar months, starting from the date You acquired the credit. If any
credit(s) remains unused after the six (6) calendar months, You forfeit those credits(s).
6.5.2 Curtesy credits and other bonus credits may Rollover for a specified amount of time that differs from
the
six (6) calendar month period referenced in Section 6.5.1.
6.5.3 Free Trial Credits DO NOT Rollover.
6.6 Hold
6.6.1 Subject to certain limitations, eMusic allows You to place Your paid monthly or quarterly account on
hold
for either thirty (30), sixty (60), or ninety (90) days (“Hold Period”) starting the day before the next
cycle
associated with Your Plan Option Period (i.e., the next month if you are registered for a monthly Plan
Option).
You may only put Your account on hold once per year, starting from the first day You place Your account on
hold.
You cannot place any annual account on hold.
6.6.2 During Your Hold Period, You will not be charged. At the end of Your Hold Period, Your monthly or
quarterly account will be re-activated and You will be charged the fee associated with Your current Plan
Option.
6.6.3 You may continue to use Your credits during Your Hold Period.
6.6.4. Your credits will continue to Rollover during Your Hold Period.
6.7 Content
Please note that some restrictions may apply to the audiobooks available for purchase during your
membership.
For example, some audiobooks may only be available via our A La Carte Service. Conversely, some audiobooks
may
only be available for members. Territory restrictions may also apply.
7. ESTORIES CLOUD
When You register for an eStories membership or the eStories A La Carte Service, You will receive a free
eStories Cloud account. An eStories Cloud is a personal cloud storage We provide to You that can store and
playback Your very own audiobooks You purchased via eMusic services. The eStories Cloud can only store
unencrypted, M4B files.
8. TERMINATION/CANCELLATION/DISTANCE SELLING
8.1 To cancel Your eStories membership, please visit https://www.estories.com/account/cancel. If you cancel
Your
Account, eMusic will not refund any remaining portion of Your unused fees. However, cancellation of a paid
membership will take effect at the end of the billing period during which You deliver notice to eMusic, and
you
will have until the end of said period to use any remaining credits in your account. Please note that,
following
cancellation of Your Account, You will lose any unused
credits.
8.2 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.
8.3 You may terminate this Agreement by (1) providing us with written notice of Your termination, or (2)
visiting https://www.estories.com/account/cancel and following the prompts, and ceasing to use the 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.
8.4 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.
8.5 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 6.2.2, or otherwise at any time as outlined at 8.3 above.
8.6 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 Plan Option 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 fees for the period prorated for the number of remaining unused
credits.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Only You may access the Service using Your IDs, unless otherwise agreed to in writing by eMusic. The
Content
(as herein after defined) 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 eStories 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. “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.
9.2 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.
9.3 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.
9.4 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.
10. 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
215 Lexington Avenue, Suite 1800
New York, NY 10016
copyrightagent@emusic.com
A notification of alleged copyright infringement must be addressed to eMusic’s copyright agent as listed
above
and include the following:
11. THIRD PARTY SITES AND INFORMATION
11.1 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.
11.2 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 support@estories.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 ESTORIES SITE, THE ESTORIES APP AND THE PRODUCTS AND SERVICES OFFERED THROUGH THE
ESTORIES SITE, ESTORIES 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 eStories Site or that will let You access the eStories
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 eStories 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 PLAN OPTION PERIOD, PURSUANT TO YOUR PLAN OPTION PERIOD 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 ESTORIES 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 eStories 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 eStories 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 16.7 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 or by email at support@estories.com.