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Earworm Audio Books Online Terms and Conditions
Version 2 as at 1 st August 2006
1. The Contract Between Us
1.1 This website is owned, operated, and maintained by Earworm Audio Books of 1171 Kings Road, Neptune Beach, Florida, USA (the " Company " or " we " or " us ")
1.2 Please read these conditions carefully as they set out the rules for how the Company runs the website and supplies the audio content and other goods or services which you may purchase through this website. By clicking the "Accept" button you accept and agree to be bound by these conditions which shall govern the agreement between us.
1.3 The Company reserves the rights to change the contents of this website, including these conditions at any time without notice, by posting such changes on the website. It is your responsibility to familiarize yourself with the conditions regularly to ensure that you are aware of any changes. Your continued use of this website following the posting of any such changes will constitute your acceptance of the revised conditions.
If you do not accept these conditions, you may not use this website.
2. Conditions
2.1 These conditions govern your use of Earworm Audio Books audio sales download service (" Service ") and all orders placed by you for audio content (" Works ") via this website.
2.2 Nothing in these conditions shall affect your statutory rights.
3. Orders
3.1 You must be over the age of 18 and able to form legally binding contracts under applicable law before you can place an order via the website. If you do not meet the foregoing requirements, you may not use this website.
3.2 All orders placed by you through our website will be subject to these conditions.
3.3 All orders shall be deemed to be an offer by you to purchase the Works. The Company is under no obligation to accept your order (whether or not the order has been acknowledged).
4. Order Acceptance
4.1 We will send you an email to acknowledge receipt of your order; this does not constitute our acceptance of your order. Once payment for the Works has been received, we will confirm that your order has been accepted and the Works have been delivered to your account by sending an email to you at the email address you provide in your order. Our acceptance of your order brings into existence a legally binding contract between us with respect to such order.
4.2 If there are any problems with your order, you will be contacted by a member of the customer services team.
5. Specifications
5.1 The Company has made every reasonable effort to display on the website as accurately as possible a description of each of the Works and its duration. However, some slight variations may occur from time to time.
6. Price and Payment
6.1 The price for the Works that you order will be the price quoted on the website at the date the order is received. Prices are subject to change at any time, at the Company's sole discretion, upon the posting of such prices on the website. Prices are exclusive of, and you shall be responsible for any and all sales, use, excise, value-added, consumption and other applicable taxes . Prices include delivery, unless stated otherwise on the website.
6.2 Payments must be made by credit or debit card (please see the relevant part of the website for a list of those payment cards accepted and method of payment). By submitting a credit or debit card number, you: (a) represent and warrant that your use of the particular card is authorized and that all information that you submit is true and accurate; and (b) authorize us to charge to the card you tendered all amounts payable by you to us based on the products and services you order.
6.3 The Company shall not deliver the Works until it has received confirmation of payment.
6.4 You may be subject to validation checks and/or third party authorizations depending on your method of payment.
7. Delivery
7.1 A link to the Works you have purchased will be delivered to the My Library section of the website which you can access by logging in to your account (" Your Account "). Delivery of the link to Your Account will constitute delivery of the Works to you.
7.2 The link to your Works will remain in Your Account for at least seven (7) days from the date of delivery. It is your responsibility to make sure that you download the Works from Your Account within this time period and the Company accepts no responsibility for your failure to do so.
7.3 The Company aims to deliver your Works as soon as possible after placing your order. If we cannot deliver the Works within 30 days of your order, we will notify you and you will be entitled to cancel your order and a refund will be made to you. In no event shall we be liable to pay for any damages or penalty for any delay in delivery of the Works however caused.
7.4 If you have ordered Works which are not yet available (pre-orders), we shall endeavor to deliver the Works by the date estimated for delivery as shown on the website. If we cannot deliver the Works within a reasonable period from that date (to be no longer than 30 days) we will notify you and you may cancel your order or choose to wait until the Works are available for delivery. We will refund any payments you have made if you choose to cancel the order.
7.5 Risk in the Works shall pass to you once they have been delivered to you and we will not be liable for their loss, corruption or destruction after delivery has taken place.
7.6 It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any Works purchased from this website. By placing an order, you represent that the Works ordered will be used only in a lawful manner.
8. Y our Right to Cancel
8.1 You may cancel your order with us for the Works at any stage before, and up to seven (7) working days after the Works are delivered to you by notifying the Company in writing at the address above or by sending an email to customerservices@spoken-network.com We will refund the amount you have paid.
8.2 We cannot accept cancellation where you have already downloaded the Works from the "My Library" section of the website.
8.3 You may cancel and return any unused gift certificates you have purchased from us within seven (7) working days of receipt and we will refund the amount you have paid.
9. Cancellation By Us
9.1 We reserve the right to cancel any order (or any part of the order) if for any reason:
(i) the Works ordered by you are no longer available;
(ii) the Works are withdrawn from our Service by the publisher or by the Company; or
(iii) the Works cannot be supplied to you in the country where you reside;
in which event we will notify you by email and refund any payments you have made for that order or that part of the order.
9.2 We endeavor to make sure that all prices advertised on the website are correct, However, if we discover that the Works you have ordered were listed at an incorrect price we will inform you of the correct price as soon as possible. We will give you the option of re-confirming your order or canceling it; if you choose to cancel your order we will refund any payments made.
9.3 We will not be obliged to offer any additional compensation for disappointment suffered if your order is cancelled for any reason.
9.4 We may terminate or suspend your use of and registration on this website at any time, with or without cause (including but not limited to your violation of these conditions or any inappropriate or unlawful behavior on your part), with or without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party. You are personally liable for any orders that you place and charges that you incur prior to termination.
9.5 We reserve the right to modify, suspend or discontinue this website, the Service or any Works (or any part thereof) at any time with or without notice to you. We shall not be liable to you or any third party for any such modification, suspension or discontinuation.
9.6 You agree to indemnify and hold harmless the Company and its affiliates, officers, directors, employees and representatives from any and all third party claims and demands, including reasonable attorneys' fees, for damages and/or costs due to or arising out of your breach of these conditions and/or your use of this website, the Service or any Works.
10. Limited EXPRESS Warranty for DEFECTIVE WORKS
10.1 All Works supplied by the Company will be free from material defects and be of a quality suitable for human listening when used on equipment that is in good operating condition and meets the specifications established by the Company, subject to the terms set out in this section 10 .
10.2 If the Works are materially defective or incorrect on delivery, we shall have no liability to you unless you notify the Company of the problem (by email at customerservices@spoken-network.com ), within 14 days from the date of delivery.
10.3 If you notify a problem to us we will:
(i) make good any shortage or non-delivery; or
(ii) replace any Works that are materially defective on delivery; or
(iii) where Works cannot be made good or replaced, refund you the amount paid by you for the Works in question.
The remedies set forth in this paragraph 10.3 constitute your sole and exclusive remedies, and our sole and exclusive obligations, with respect to any breach of the warranty set forth in paragraph 10.1. For the avoidance of doubt, we shall have no such obligation to you if any of the conditions set out at paragraphs 11.2 or 11.3 apply.
10.4 EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPH 10.1, THIS WEBSITE, THE SERVICE AND THE WORKS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE EXPRESS WARRANTIES STATED ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THIS WEBSITE, THE SERVICE OR THE WORKS WILL BE UNINTERRUPTED OR SECURE, OR THAT THIS WEBSITE, THE SERVICE OR THE WORKS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE TIMELINESS, ACCURACY, COMPLETENESS OR RELIABILITY OF THIS WEBSITE, THE SERVICE OR THE WORKS.
11. Our Liability
11.1 SAVE AS PRECLUDED BY LAW, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSS, DAMAGE OR EXPENSES (INCLUDING WITHOUT LIMITATION ANY LOSS OF MATERIALS OR DATA, INTERRUPTION OF SERVICE OR WASTED EXPENDITURE) HOWSOEVER ARISING OUT OF YOUR USE OF THIS WEBSITE, THE SERVICE AND/OR THE WORKS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE SHALL HAVE NO LIABILITY TO PAY ANY MONEY TO YOU BY WAY OF COMPENSATION OTHER THAN TO REFUND TO YOU THE AMOUNT PAID FOR THE WORKS IN QUESTION. THE FORGOING LIMITATIONS SHALL APPLY REGARDLESS OF THEORY UNDER WHICH SUCH CAUSE OF ACTION IS BROUGHT, WHETHER IN CONTRACT, TORT, WARRANTY OR OTHERWISE.
11.2 The information contained in the website has not been written to meet your individual requirements and it is your sole responsibility to satisfy yourself that the Works you order are suitable for your specific purposes and compatible with your computer hardware and devices. You shall be responsible for ensuring the accuracy of all details provided as part of your order.
11.3 The Company shall be under no liability in respect of any defect in the Works arising from your use or deletion of the Works, incompatibility of your equipment, your failure to follow instructions to download and access the Works, or any misuse or alteration of the Works.
11.4 Some states do not allow the exclusion of implied warranties or incidental or consequential damages, so the above exclusion thereof may not apply to you. These conditions give you specific legal rights, and you may also have other rights that vary from state to state.
12. Use of the Works and Other Rights and Restrictions
12.1 The Company is an authorized distributor of the Works. Except as provided in the immediately following sentence, the Company retains all rights, title and interest in and to this website and the Service, including all software, design, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material and other copyrightable or otherwise legally protectible elements contained therein, and the selection, sequence, “look and feel” and arrangements thereof. The Company's licensors retain all rights and title in connection with the Works. This website, the Service and the Works are protected by intellectual property laws and your use is strictly restricted to these conditions, including the following:
(i) You are granted a limited, non-exclusive, non-transferable, revocable license to download the Works you have purchased to your computer or other compatible device.
(ii) You may only use this website, the Service and the Works for your own personal use and not for any business-related purposes.
(iii) You may burn the Works you have purchased up to three (3) times onto any compatible device or appropriate media. Occasionally our publishers may vary the number of times you may burn a copy of certain Works; in this event, we will notify you at the time you place your order. Other than as expressly granted here, you shall not reproduce or make any further copies of the Works.
(iv) You may not and may not allow others to sell, transfer, sublicense, distribute, publicly perform, frame or create derivative works from this website, the Service, the Works or any part thereof.
(v) You may not and may not allow others to modify, decompile, reverse engineer, decrypt, circumvent or otherwise interfere with or alter the website, Service or Works.
12.2 Samples of certain Works may be provided by us which you may play directly from the website free of charge. You may play as many of these samples as you like but you must not attempt (or allow others to attempt) to copy, download or otherwise interfere with these samples.
12.3 You are responsible for all use made of the Works purchased via the website and we will not be responsible for any infringement of third party rights which arise as a result of your use of the Works.
12.4 The trademarks, service marks, graphics and logos used in connection with this website and/or the Service are trademarks or registered trademarks of the Company or its licensors. You are granted no right or license with respect to any such trademarks or service marks and any unauthorized use is strictly prohibited .
12.5 All rights not expressly granted herein are reserved.
13. Acceptable Use
13.1 You shall not breach or attempt to breach the security of this website or the Service. Without limiting the foregoing, you shall not:
(i) access data or materials not intended for you;
(ii) log into a server or account which you are not authorised to access;
(iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorisation.
Breaches of system or network security may result in civil or criminal liability. We reserve the right to investigate occurrences which may involve such breaches and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such breaches. Use of spiders, robots and similar data gathering and extraction tools is expressly prohibited.
13.2 You agree not to use this website in any way that may cause the website or access to the website to be interrupted, damaged or impaired.
13.3 The website may host reviews, feedback and comments from users. Any electronic communications and / or content you send to this website must be for lawful purposes only. You are responsible for such content, which should not be malicious, defamatory, obscene, racist or designed to offend or to cause annoyance. In particular, such communications and content must not be illegal, abusive, threatening, indecent, defamatory or menacing. It must not breach copyright, trade mark, confidence or privacy rights, and must not consist of or include software viruses, political announcements, commercial solicitation or advertising, chain letters, mass mailings or "spam".
13.4 When dealing with this website you must not use a false email address, impersonate any other person or entity, or mislead the website and its users as to the origin of any electronic communications or content.
Unauthorized use of this website may give rise to a claim for damages and/or be a Criminal offense
14. Your Information
14.1 As a user of the website you will need to set up and maintain an account on the website. You are solely responsible for keeping your passwords confidential and secure at all times. You should notify us immediately if you become aware of any unauthorized access to your account. In no event shall we be responsible for any loss you may suffer as a result of any misuse of your account and/or passwords.
14.2 You agree to provide current, complete and accurate information required to complete your account registration and at other times as may be required in the course of using this website or the Service (" Registration Data "). You further agree to maintain and update Registration Data as required to keep it current, complete and accurate. If any information you provide is false, incomplete or inaccurate, we may terminate your rights to use this website and the Service. If the information you provide is fraudulent, you may also be subject to criminal and/or civil liability. You agree that we may store and use Registration Data you provide (including credit card information) for use in maintaining your accounts and billing fees to your credit card.
14.3 You will be responsible for installing adequate anti-virus software and related security protection to secure your computer systems when using the Service. We will not be responsible for any loss suffered as a result of your failure to do so.
15. Offensive Content
15.1 The website may contain reviews, feedback and other comments submitted by our users. It is not possible for us to monitor the content of all of these reviews and we therefore take no responsibility for any content, materials, messages and the like that users may post or view on these areas of the website. We will endeavor to remove any content which causes or is likely to cause offense as soon as reasonably practical after we have been made aware of this. If you wish to make a complaint with regards to any offensive content, please contact info@earwormaudiobooks.com
16. Disclaimer of Liability for Third Party Materials
16.1 Certain content, products and services available via this website may include materials from third parties. In addition, we may provide links to certain third party websites. With respect to such material, we are a distributor, not a publisher. You acknowledge and agree that we have little or no control over, and are not responsible for examining or evaluating the content or accuracy of any such third party material or websites. The Company does not warrant or endorse and does not assume and will not have any liability or responsibility for any third party materials or websites, or for any other materials, products or services of third parties. Links to other websites are provided solely as a convenience to you.
17. Notices and Correspondence
17.1 Unless otherwise expressly stated in these conditions, all notices and other forms of communication from you to us must be in writing and sent to Earworm Audio Books, 1171 Kings Road, Neptune Beach, FL 32266 or by email to info@earwormaudiobooks.com All notices from us to you will be displayed on our website from time to time.
18. Events Beyond Our Control
18.1 We shall have no liability to you for any failure to deliver the Works you have ordered or any delay in doing so or for any damage or defect to Works delivered that is caused by any event or circumstance beyond our reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, lightning, flood, fire, explosion, acts of terrorism or accident.
19. Invalidity
19.1 If any of these conditions is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other conditions, which shall remain in full force and effect.
19.2 If any of these conditions is found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make valid and enforceable.
20. Privacy
20.1 You acknowledge and agree to be bound by the terms of our privacy policy; /privacy.html which is incorporated herein by reference.
21. Third Parties
21.1 Except for our affiliates, officers, directors, employees or representatives who are entitled to indemnification hereunder, a person who is not party to the contract shall have no rights hereunder to enforce any term of such contract.
22. Entire Agreement
22.1 These conditions, together with our current website prices, delivery details, contact details and privacy policy, set out the whole of our agreement relating to your access to and use of this website and the Service and the supply of the Works to you by us, and supersede all prior and contemporaneous understandings of the parties hereto relating to the subject matter hereof. Nothing said by any sales person on our behalf should be understood as a variation of these conditions or as an authorized representation about the nature or quality of any goods offered for sale by us. Save for fraud or fraudulent misrepresentation we shall have no liability for any such representation being untrue or misleading.
23. Governing Law and Jurisdiction
23.1 The contract between us and any matter arising from or in connection with these conditions shall be governed by and construed in accordance with the laws of the State of Florida, United States of America
24. Electronic Delivery Policy
24.1 You agree that we may provide to you required notices, agreements and other information electronically as specified in these conditions. If you want to withdraw your consent to receive notices electronically, you must discontinue your use of this website.
25. Miscellaneous
25.1 This website is intended exclusively for residents of the United States. The Company makes no representations that materials in this website are appropriate or available for use in other locations. Those who choose to access this website from other locations do so at their own risk and are responsible for compliance with any and all local laws, if and to the extent local laws are applicable. No Works or other materials from this website may be downloaded, exported or re-exported in violation of any law including, without limitation, to countries that are subject to U.S. export restrictions. The failure of the Company to exercise or enforce any right or provision of these conditions will not constitute a waiver of such right or provision .
Version 2 as at 1 st August 2006
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