PLEASE READ CAREFULLY. THIS "BRANCH RECORDS SERVICE TERMS AND CONDITIONS" ("AGREEMENT")
IS A LEGALLY BINDING AGREEMENT BETWEEN EACH USER (INCLUDING ANY SUBSCRIBER, FREE TRIAL USER, OR PURCHASER OF ANY BRANCH RECORDS SERVICE REQUIRING PAYMENT OF A FEE) ("YOU" AND "YOUR") ("BRANCH RECORDS" "BR-SUB," "WE," "US," OR "OUR"). BY CLICKING THE "I AGREE" BUTTON YOU ARE INDICATING THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU CONSENT TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. THIS AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR SUBSCRIPTION TO THE BRANCH RECORDS SUBSCRIPTION SERVICE(S) THAT YOU HAVE SELECTED, AND YOUR USE OF AND ACCESS TO ANY SERVICE PROVIDED BY BR-SUB THROUGH THE BRANCH RECORDS SUBSCRIPTION SERVICE OR THE RHAPSODY APPLICATION. AS USED HEREIN, "SERVICES" INCLUDES ANY VERSION OF THE BRANCH RECORDS SUBSCRIPTION SERVICES AS WELL AS DOWNLOADS, BURNS OR OTHER SERVICES PROVIDED BY BR-SUB THROUGH THE BRANCH RECORDS SUBSCRIPTION SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF THIS SUBSCRIPTION AGREEMENT, YOU SHOULD CLICK "I DO NOT AGREE" AND STOP THE SUBSCRIPTION REGISTRATION PROCESS.
1. ENROLLMENT IN THE SERVICES
In exchange for applicable fees, and subject to certain limitations as described herein, you will be granted the right
to stream (and/or download or burn, if applicable) tracks and video clips that are available as part of the
Subscription Service to which you subscribe on the terms specified during the subscription registration process,
and simultaneously have access to our broad range of editorial and contextual information about the artists you are
listening to and their recordings (including audio and, as applicable, video).
In order to access your Service(s), you must have downloaded the Application, possess the hardware and software
required by the Application, and be connected to the Internet. Downloads obtained through your Service may be
played when you are not connected to the Internet, but you must connect periodically to download more.
Any information that you supply to us will be governed by the terms and conditions of BR-SUB's Privacy Policy, as it
may be updated from time to time by us.
By subscribing to or accessing any Service, you are representing to us that you are authorized to use the credit card
you submit for payment and that you reside in the United States. If you are a parent or guardian paying on behalf of
a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for
the actions of such other person, any charges associated with that person's use of any of the Services, and that
person's compliance with this Agreement. You agree to take such steps as are appropriate to ensure such
compliance and will indemnify and hold BR-SUB and its affiliates and distribution and syndication partners
harmless from any breach of this Agreement.
2. TERM, FEES AND PAYMENTS
Applicable fees for Services may include a periodic (e.g., monthly, quarterly or annual) subscription fee based on
the particular Service requested, transaction fees, taxes, and fees for downloading and/or burning tracks.
(a) Free Trial Period
Once you have registered for a subscription to the Service(s) of your choice, we may offer you a one-time, free trial
period during which you can try out such Service(s) for free ("Free Trial Period"). The length of any such Free Trial
Period, and the particular Services included, may vary from time to time, and will be indicated at the time you
register for your subscription or upon first login. If you terminate your subscription prior to the expiration of the Free
Trial Period, you will not have any financial obligation with respect to your subscription, and your credit card will not
be charged for your use of the Service. However, you will be charged for any Services you choose to access that
are not included within the free trial; for example, if your free trial does not include purchases from the online music
store, you will be charged the applicable fee for any download or burns obtained through the store. The Free Trial
Period will expire at midnight Central Standard Time on the last day of the Free Trial Period, and your initial paid
subscription will automatically be activated at 12:01am on the day following the last day of your Free Trial Period
("Activation Date"). Each user is entitled to a Free Trial Period only one time per Service. If you subscribe to a
Service after you have already received a Free Trial Period on such Service, your credit card will be billed
immediately upon registration. Free trials are also limited to one per credit card. Should two customers use the
same credit card to subscribe to Branch Records, only the first customer is eligible to receive a Free Trial Period.
(b) Initial Subscription Payment
By registering for one of the Services, you agree that if you do not cancel your subscription before the expiration of
your Free Trial Period, you will pay the applicable fees for the Service that you select upon registration. If you do not
cancel your subscription prior to the expiration of the Free Trial Period, we will charge your credit card, on your
Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees
will automatically be charged to the credit card you designated as the credit card to be billed for your account.
(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at
the end of each subscription term. Your renewed subscription will have the same duration as the subscription being
renewed (e.g. one month, one quarter, etc.). At the time of renewal, your credit card will be charged our then-current
fees for the applicable subscription, provided that if the fee for your renewal Service has increased, we will notify
you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to
elect not to renew.
(d) Your Billing Date
Your credit card will be charged for the renewal term of your Service on your billing date ("Billing Date"), which is
the 1st of every month for a monthly subscription.
(e) Early Termination
NOTE: Some subscriptions are provided and priced based on your commitment to subscribe for a minimum period
of time, e.g. six months or twelve months. Such minimum commitment is based on your Billing Date, rather than the
first or last day of a calendar month. You acknowledge that, in the event of early termination by you, we may incur
costs and/or diminution in the value of the agreement that may be difficult to measure. Therefore, in the event of
early termination for any reason (including voluntary termination by you or credit card expiration), the early
termination fee stated at the time of registration may be charged to you as BR-SUB's liquidated damages resulting
from your early termination.
(f) Track Downloads and Burning
Regardless of the use of the word "purchase," all tracks offered for download or burning are offered for license, not
purchase or sale, and are subject to this Agreement and any other license terms and conditions applicable to the
track, including limitations imposed by the use of digital rights management technology. All licenses to download or
burn tracks are personal to the customer. Your request to "purchase" a track by downloading or burning is personal
to you, and the track may not be used, sold, rented, transferred, licensed or otherwise provided to any other user.
License to downloaded or burned tracks include only those rights explicitly stated in the Service (typically, the right
to play back for your own personal use from your personal computer, CD player, digital player, or other personal
consumer electronic device), and, for the avoidance of doubt, do not include the right to create a derivative work, to
make copies other than for your own personal use, or to use the track in any commercial manner.
(g) No Warranties
WITHOUT LIMITING ANY PROVISION HEREIN, BR-SUB MAKES NO WARRANTY THAT ANY PARTICULAR
COMPACT DISC BURNER, PLAYER, PORTABLE DEVICE, OR OTHER HARDWARE WILL BE COMPATIBLE
WITH BR-SUB'S APPLICATION OR THAT ANY COMPACT DISC BURNED USING THE APPLICATION WILL
FUNCTION IN ALL COMPACT DISC PLAYERS. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR
RECORDING AND PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE APPLICATION.
(h) No Refunds
All fees paid and charges made prior to termination as provided herein, including any advance charge or payment
for the subscription term during which you terminate your subscription, are nonrefundable. Termination of your
subscription shall not relieve you of any obligations to pay accrued charges.
(i) Methods of Payment and Credit Card Terms
All payments must be made by VISA, MasterCard. We do not accept cash, checks or any other payment form. AS
BETWEEN YOU AND BR-SUB, YOU, AND NOT BR-SUB, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR
SERVICES BILLED TO YOUR CREDIT CARD BY A THIRD PARTY WHO HAD ACCESS TO YOUR CREDIT CARD
OR CREDIT CARD NUMBER, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU. You agree to
pay all fees and charges incurred in connection with your subscription and its password (including any applicable
taxes) at the rates in effect when the charges were incurred. If BR-SUB does not receive payment from your credit
card issuer or its agent, you agree to pay all amounts due upon demand by BR-SUB.
(j) Unauthorized Charges
Unless you notify BR-SUB of any discrepancies or unauthorized charges within sixty (60) days after they first
appear on your credit card statement, they will be deemed accepted by you for all purposes, including resolution of
inquiries made by your card issuer. You release BR-SUB from all liabilities and claims of loss resulting from any
error or discrepancy that is not reported to BR-SUB within sixty (60) days of its first appearance on an invoice or
credit card statement.
(k) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You
agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription
to the applicable Service(s).
(l) Taxes
You are responsible for paying any governmental taxes imposed on your use of the Service(s), including, but not
limited to, sales, use or value-added taxes.
(m) Transaction Fees
BR-SUB may impose an additional transaction fee based on transactions associated with Services, including a
transaction fee applied to your periodic subscription fee, or your purchase of downloaded tracks or burns. Such
transaction fee will be disclosed to you prior to your agreement to the relevant transaction, such as through the
order path for a subscription Service, by email notification concerning your Services and applicable fees, through
the order path for downloadable tracks or burns, or in a similar, explicit manner.
(n) Credit Card Authorization
BR-SUB may seek authorization of your credit card to validate your ability to charge the fees to access the
applicable Services prior to the first purchase. The authorization amount is typically $10, but may vary based on the
relevant Services. It is standard for online music. This authorization is not a charge. However, this authorization may
reduce your available credit by the authorization amount until your bank's next processing cycle.
(o) Modifications to Fees or Billing Terms
BR-SUB RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING
METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT,
OR SERVICES PROVIDED BY BR-SUB, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE
SENT TO YOUR DESIGNATED EMAIL ADDRESS. If any such change is unacceptable to you, you may terminate
your subscription by calling customer service at (877) 674-ROOT. Your continued use of the Service(s) following
the effective date of a change to fees or billing methods shall constitute your acceptance of such change.
YOUR ACCEPTANCE OF THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO BR-SUB TO EMAIL YOU
WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE
APPLICATION OR SERVICE(S) TO WHICH YOU HAVE SUBSCRIBED.
3. TERMINATION
(a) Termination By You
To cancel your subscription to any of the Services, please call (877) 674-ROOT. Once you have terminated your
subscription, we will stop billing your credit card until and unless you re-subscribe to a Service. However, please
note that there may be an early termination fee, as described in Section 2(e) above, based on your subscription. All
fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance
charge or payment for the subscription term during which you terminate your subscription. Termination of your
subscription shall not relieve you of any obligations to pay accrued charges.
(b) Termination By Us
You agree that BR-SUB, in its sole discretion, with or without prior notice, may freeze or terminate your user name,
password or use of the Application and/or Service(s) (or any part thereof) for any reason, including, without
limitation, if BR-SUB believes that you have violated or acted inconsistently with the letter or spirit of this
Subscription Agreement or the Branch Records End User License Agreement. BR-SUB may also in its sole
discretion and at any time modify or discontinue providing the Application and/or any Service, or any part thereof,
with or without notice. Further, you agree that BR-SUB shall not be liable to you or any third-party for any
interference with or termination of your access to the Application and/or any Service.
4. CUSTOMER SERVICE
You understand and agree that BR-SUB is solely responsible for all customer service, help, billing and account
issues related to your subscription. Neither your ISP nor any third party website through which you may have
accessed any Service is responsible for customer service, help, billing and account issues related to your
subscription. You agree not to direct any questions, requests for assistance, or inquiries about any Service to your
ISP or to any third party website through which you may have accessed any Service. For assistance, please contact
Customer Service.
5. YOUR ACCOUNT INFORMATION
(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as
prompted by the subscription process (such information being the "Account Information").
(b) Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the
applicable expiration date on your currently designated card by selecting "Manage My Account" from the "My
Account" menu page and then clicking the appropriate link in the Manage My Account section.
(c) Our Use of Account Information
We shall treat all of your Account Information with the utmost respect for its confidential nature, and in accordance
with our Privacy Policy, which is expressly incorporated herein by reference.
(d) Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password, and for any and all
activities that occur under your account. If you believe someone has accessed any Service using your user name
and password without your authorization, it is your responsibility to set up a new password by clicking on the
Account Status link on the Application and selecting the appropriate link.
6. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Services using your user name and password. The Services available through the
Application, and the Application itself, are the property of BR-SUB or its licensors and are protected by copyright
and other intellectual property laws. The Services provided through the Application may be used for your personal,
non-commercial use only. You agree not to (i) reproduce, record, retransmit, distribute, disseminate, sell, rent,
broadcast or circulate the Application or any content received through the Application or any Service (including
music content) to any third party, (ii) exploit any such content or the Application for commercial purposes without the
express prior written consent of BR-SUB, or (iii) to share your password with any third party. You may not make any
unauthorized copies of the Application or any content obtained through the Services. Because the Services are
designed for personal use, you are not allowed to use any automated system for the selection or streaming of files.
You further agree to indemnify and hold harmless BR-SUB for your failure to comply with this section.
BR-SUB and its licensors retain exclusive ownership of the Application, the Services, and all intellectual property
rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to
patents, copyrights, trade secrets or trademarks with respect to the Services, the Application or their contents. BRSUB
reserves all rights not expressly granted hereunder. You shall promptly notify BR-SUB in writing upon your
discovery of any unauthorized use or infringement of the Services (or their contents) or any patent, copyright, trade
secret, trademarks or other intellectual property rights of BR-SUB or its licensors. The Application and the Services
contain proprietary information that is protected by copyright laws and international treaty provisions.
BR-SUB expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s)
and reserves the right to terminate your service immediately for your failure to comply with any such local, state or
federal law.
7. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
BR-SUB will make reasonable efforts to keep your account and the Service(s) operational. However, certain
technical difficulties or maintenance may, from time to time, result in temporary interruptions. We will make
reasonable efforts to notify you at least twenty-four (24) hours in advance of any downtime that we anticipate in
advance will exceed one hour.
BR-SUB also reserves the right at any time and from time to time to modify or discontinue, temporarily or
permanently, functions and features of the Application and Service(s) with or without notice. Due to contractual or
other limitations, from time to time, some tracks available in any particular catalog may no longer be available. BRSUB
reserves the right to change the tracks and albums available in any catalog at any time.
BR-SUB shall not be liable to you or to any third party for any of the direct or indirect consequences of any
modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).
8. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BR-SUB AND ITS DISTRIBUTION AND SYNDICATION
PARTNERS DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
BR-SUB MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE
APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES BR-SUB MAKE
ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE
ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. BR-SUB MAKES
NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE
APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.
9. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH
YOU. IN NO EVENT SHALL BR-SUB OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT,
INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR THE
USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF BR-SUB HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE
LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY
LAW.
10. MODIFICATION OF SUBSCRIPTION AGREEMENT
BR-SUB may modify this Subscription Agreement at any time in its sole discretion. If we make a material change to
the Subscription Agreement, a "change of terms" notice will be posted and we will use reasonable efforts to notify
you by email at the email address on file for your account. If any modification is unacceptable to you, you agree that
your only recourse is to terminate your subscription to any of the Service(s) as provided herein. Your continued use
of any Service following our posting of a change of terms notice, an email notice to you, or a new Subscription
Agreement on the Application will constitute your binding acceptance of the change, until such time as you
terminate your subscription.
11. INDEMNIFICATION
You agree to indemnify and hold BR-SUB and its parents, members, subsidiaries, affiliates, service providers,
syndicators, distributors, licensors, officers, directors and employees, harmless from any claim or demand, including
reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this
Agreement, or your violation of any law, regulation or third-party right.
12. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida, United States of America, without regard to or
application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state
and federal courts sitting in Bay County, in the State of Florida. This Agreement will not be governed by the United
Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly
excluded. If either BR-SUB or you employs any attorneys to enforce any rights arising out of this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
13. GENERAL
No delay or failure to take action under this Agreement shall constitute any waiver by BR-SUB of any provision of
this Agreement.
If any provision of this Agreement is invalid or unenforceable under applicable law, it is, to that extent, deemed
omitted and the remaining provisions will continue in full force and effect. This Agreement will bind and inure to the
benefit of each party's permitted successors and assigns. This Agreement is personal to you and may not be
transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement
shall be null and void. This Subscription Agreement (including all documents expressly incorporated herein by
reference including but not limited to the Branch Records End User License Agreement constitutes the complete
and exclusive agreement between BR-SUB and you with respect to the subject matter hereof and supersedes all
prior oral or written understandings, communications or agreements not specifically incorporated herein.