Terms of Sale
Terms of Sale
Certain products and services may from time to time be made available to you (”you” or “User”) by imeem, Inc. or its corporate affiliates (collectively, “us”, “we” or “the Company”) through the imeem web site (the “Site”) and service (”imeem” or the “Service”). By purchasing any products or services through imeem, you signify that you have read, understand and agree to be bound by the Terms of Sale in effect at the time of purchase (”Terms of Sale”). Your purchases and your use of imeem are also governed by the imeem Terms of Use (”Terms of Use”), which are incorporated herein by reference.
These Terms of Sale are subject to change without prior written notice at any time, in Company’s sole discretion, and such changes shall apply to any purchases made after such changes are posted to the Site. Therefore, you should review these Terms of Sale prior to each purchase so you will understand the terms applicable to such transaction. IF YOU DO NOT AGREE TO THESE TERMS OF SALE, DO NOT MAKE ANY PURCHASES ON IMEEM. If we make a material change to our subscription service we will use reasonable efforts to notify you by email at your designated email address. If any modification is unacceptable to you, you agree that your only recourse is to terminate your subscription as provided herein.
PLEASE READ THESE TERMS OF SALE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.
1. General
The Service and any related software may enable you to obtain, listen to, view, and/or read (as the case may be) content that may be obtained by you in digital form, and you shall do so solely for your personal, noncommercial entertainment use (“Content”). This Content may be owned by Company or by third parties. However, in all circumstances, you understand and acknowledge that your rights with respect to the Content will be limited by copyright law. You agree not to make any use of the Content that would infringe the copyright therein. You agree that you will not attempt to modify any software or Content obtained through the Service for any reason whatsoever, including for the purpose of disguising or changing ownership or source of the Content. Permanent Downloads (defined below) consisting of Content owned or controlled by Sony Music are sold directly by Sony Music Entertainment Downloads LLC via Company as its sales agent.
You represent, warrant and agree that you are using the Service hereunder for your own personal, noncommercial entertainment use and not for redistribution of any kind. You agree not to redistribute, broadcast, publicly perform or publicly display any Content, or otherwise transfer any copies of Content obtained through the Service.
Company and/or the owners of the Content may, from time to time, remove Content from the Service without notice. The owners of Content (including principals, where imeem is acting as sales agent) are intended third-party beneficiaries of this Agreement and shall have the right to enforce this Agreement against you and invoke all rights hereunder including limitations of liability. Company, as a reseller to you, or as sales agent for Sony Music Entertainment Downloads LLC, does not accept orders from music dealers, exporters, wholesalers, any businesses of any kind or other customers who intend to resell. The delivery of a product or Content does not transfer to you any commercial or promotional use rights in the product or Content.
You acknowledge that some products may contain security technology that limits your use of the products or Content in accordance with the usage rules. The security technology is an inseparable part of the products and Content.
2. Purchase Requirements
To make a purchase on imeem, you must be a registered imeem User and comply with these Terms of Sale (including the Terms of Use). You acknowledge that you are responsible for maintaining the security of, and restricting access to, your account and password, and you agree to accept responsibility for all purchases and other activities that occur under your account. The Company (or its principals, where imeem is acting as a sales agent) sells its products only to those users who can legally make purchases with a credit card. If you are under 18 years of age, you may make purchases on imeem only with the involvement of a parent or guardian. We reserve the right to refuse or cancel orders or terminate accounts, at any time in our sole discretion. In the event that we terminate your or any gift recipient’s account, products and services purchased pursuant to these Terms of Sale may be forfeited without recompense.
3. Payment Method and Terms
We accept Visa, MasterCard, American Express, and Discover credit cards, as forms of payment. By submitting an order through imeem, you authorize the Company, or its designated payment processor, to charge the account you specify for the purchase amount. If imeem does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by imeem. All payments are to be made in United States Dollars. We may seek authorization of your credit card to validate your ability to charge the fees to access the applicable product or services prior to the first purchase. The authorization amount is typically $20, but may vary. This authorization is not a charge but may reduce your available credit by the authorization amount until your bank’s next processing cycle.
4. Subscription Terms
Payment; Renewal. By completing the subscription service registration, you authorize imeem to charge applicable recurring subscription fees to your designated billing payment method. Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term at the then-current fee. ALL SUBSCRIPTION FEES ARE SUBJECT TO CHANGE ON A PROSPECTIVE BASIS UPON NOTICE FROM US SENT TO YOUR DESIGNATED EMAIL ADDRESS. IF YOU DO NOT ACCEPT THE NEW FEES, YOU SHOULD TERMINATE YOUR SUBSCRIPTION IMMEDIATELY. You will be charged for the renewal term of the subscription service on your billing date (”Billing Date”), based on the type of subscription (e.g., on a particular date each month for a monthly subscription; on the anniversary for an annual subscription; on the two-year anniversary for a biennial subscription, etc.). If, however, the activation date of your subscription is on the 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due, your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be. 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. You may update any of your billing information by clicking here.
Cancellation. To cancel your subscription, please follow the instructions set forth here. Once you have terminated your subscription, we will stop billing your credit card until and unless you re-subscribe. However, 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. You agree that we, in our sole discretion, with or without prior notice, may freeze or terminate your use of the subscription service for any reason, including, without limitation, if we believe that you have violated these Terms of Sale or the Terms of Use. We may also in our sole discretion, and at any time, modify or discontinue providing the subscription service, or any part thereof, with or without notice. Further, you agree that we shall not be liable to you or any third-party for any interference with, or termination of, your access to the subscription service.
5. Downloads
Permanent Downloads. “Permanent Downloads” are sold in the MP3 format, at the bit rate of at least 256 kilobits per second (kbps), and in some cases 320 kbps. imeem will not assign limits to the number of times Permanent Downloads purchased via imeem can be copied, transferred or burned (though your own use will depend upon your own hardware and software and its limitations, and you must abide by these terms and conditions and all applicable laws). imeem and/or its principals may include digital watermarks (embedded bits of information in addition to the sound file) in your Permanent Downloads. imeem will not include any information personally connected to you in any such digital watermark or otherwise. You are only entitled to one copy of any purchased MP3 Permanent Download.
You must download the purchased Permanent Download to the computer where you wish to keep the file and you must use your Web browser’s functionality to specify where the downloaded files will be saved. imeem will not be able to send another copy to you if you download any Permanent Download to a computer or directory that you did not intend to and you are not able to locate or access the file.
Download Content. We may offer content that contains explicit content. In the event that such content is available in both an explicit version and an edited version, we shall identify these versions at the time you are able to select the content for purchase. If you purchase content that contains explicit content, you hereby acknowledge and agree that you are 18 years of age, or if you are not 18 years of age, you have legal parental or guardian consent to purchase such content.
6. Refund Policy; Errors; Customer Support
All sales are final. In the event of an error, whether on the Site, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right to correct such error and revise your order accordingly, if necessary (including charging the correct price) or to cancel the order and refund any amount charged. In addition, we may, in lieu of a refund as provided in this paragraph, opt to provide you with a merchandise or service credit with a value at least equal to the amount charged to your credit card. imeem reserves the right to determine and modify from time to time the exact nature of any such merchandise or service credit, including conversion into one or more different types of merchandise or service credits. Your sole remedy in the event of such error is to cancel your order and obtain a refund or credit as set forth above. Unless you notify us 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 and you release us from all liabilities and claims of loss resulting from any such error or discrepancy.
For assistance with billing questions or other order inquiries, please refer to our online support page by clicking here. If you cannot find the answers you are seeking, you can send us an email at imeemstore@imeem.com. Responses to emails will be provided as soon as possible.
7. Privacy
We care about the privacy of our Users. Click here to view the Site’s Privacy Policy. By using the Site or the Service, you are consenting to have your personal data transferred to and processed in the United States.
8. Indemnity
You agree to indemnify and hold imeem, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, principals, and suppliers harmless from any dispute arising from or in any way related to your purchase or use of the products and services, or from a breach of terms of this Agreement or your representations and warranties. You agree to hold imeem, its subsidiaries, affiliates, successors, assigns, directors, officers, agents, employees, service providers, principals and suppliers harmless from any claims and expenses, including reasonable attorney’s fees and court costs, related to your violation of this Agreement.
9. Disclaimers
THE SERVICE INCLUDING ALL PRODUCTS, CONTENT AND OTHER INFORMATION, MATERIALS AND PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND FROM COMPANY OR ANY OWNERS OF CONTENT. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY AND ALL OWNERS OF CONTENT (INCLUDING IMEEM’S PRINCIPALS WHERE IMEEM IS ACTING AS A SALES AGENT) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER COMPANY NOR ANY OWNER OF CONTENT WARRANTS THAT THE SERVICE OR ANY CONTENT, INFORMATION, MATERIALS OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT PURCHASE AND USE OF ANY PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, IS ENTIRELY AT YOUR OWN RISK. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, IMEEM AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE SITE OR SERVICE OR ANY PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, PURCHASED HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, IMEEM AND ITS LICENSORS AND PRINCIPALS DISCLAIM ANY WARRANTIES FOR OTHER PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, RECEIVED THROUGH OR ADVERTISED ON THE SITE OR SERVICE. TO THE FULLEST EXTENT PERMITTED BY LAW, IMEEM AND ITS LICENSORS AND PRINCIPALS DISCLAIM ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE SERVICE OR SITE OR ANY PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, PURCHASED THEREON, THAT THE FUNCTIONS CONTAINED IN THE SITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WITHOUT LIMITING ANY PROVISION HEREIN, COMPANY MAKES NO WARRANTY THAT ANY PARTICULAR MEMORY DEVICE OR PORTABLE DEVICE WILL BE COMPATIBLE WITH THE SERVICE OR THAT ANY MEMORY DEVICE OR PORTABLE DEVICE USED WITH THE SERVICE WILL FUNCTION AS DESCRIBED. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR RECORDING AND PLAYBACK SYSTEM(S) WILL FUNCTION CORRECTLY. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, principal, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by imeem.
10. Limitation on Liability
UNDER NO CIRCUMSTANCES WILL IMEEM OR ITS LICENSORS OR PRINCIPALS BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF IMEEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ON ACCOUNT OF USERS PURCHASE OF PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, ON THE SITE, WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE SITE, SERVICE OR PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, PURCHASED HEREUNDER, FROM INABILITY TO USE THE SITE, SERVICE OR PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, PURCHASED HEREUNDER, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE SITE OR SERVICE OR PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, PURCHASED HEREUNDER. SUCH LIMITATION WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE SITE OR SERVICE, INCLUDING THIRD PARTY CONTENT, OR FOR DAMAGES INCURRED BY YOUR BREACH OF THIS AGREEMENT. THESE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, IMEEM’S AND THIRD PARTY LICENSOR’S (OR PRINCIPALS) DAMAGES, IF ANY, TO YOU SHALL BE LIMITED TO THE AMOUNT, IF ANY, PAID BY YOU TO IMEEM FOR PRODUCTS OR SERVICES, INCLUDING THIRD PARTY CONTENT, HEREUNDER. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, the foregoing limitation may not apply to you.
11. Arbitration
YOU AND IMEEM AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS OF SALE (INCLUDING THE TERMS OF USE) OR THE SALE OF THE PRODUCTS OR SERVICES SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark or trade secret rights, such other party may seek injunctive or other appropriate relief.
Arbitration under this Agreement shall be conducted by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA’s Supplementary Procedures for Consumer Related Disputes ( the “AAA Consumer Rules”) (collectively the “AAA Rules”). The location of the arbitration and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). If such costs are determined to be excessive in a consumer dispute, imeem will be responsible for paying all arbitration fees and arbitrator compensation in excess of what is deemed reasonable. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SALE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action or proceeding by you related in any way to any products or services be instituted more than three (3) years after the cause of action arose.
12. Miscellaneous
These Terms of Sale constitutes the entire agreement between you and imeem and governs your purchase of products and services from imeem, superseding any prior agreements between you and imeem. In the event of a conflict between these Terms of Sale and the Terms of Use, these Terms of Sale shall be controlling. These Terms of Sale will be governed by the laws of the State of California, without giving effect to its conflict of laws provisions. Any claim or controversy in any way arising out of or relating to these Terms of Sale will be filed in a court of competent jurisdiction sitting in San Francisco County, California. Both parties consent to exclusive jurisdiction in that county. The failure of imeem to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to purchase of products or services from imeem must be filed within one (1) year after such claim or cause of action arose or be forever barred.