PURCHASE AND RENTAL TERMS AND CONDITIONS

Effective August 1, 2012

Updated to include Rental Terms October 27th, 2014

 

Welcome to Downpour.com (the “Site”), operated by Blackstone Audio, Inc. (“Downpour” or “Company”). These Purchase and Rental Terms and Conditions govern the purchase and rental of licensed and original audiobook and e-book content and related matter (“Audio and E-Book Content”) for playback on various devices authorized by Downpour (“Authorized Devices”). By purchasing a membership plan or purchasing or renting any Audio and E-Book Content, you agree to be bound by these Purchase and Rental Terms and Conditions, which are subject to change by Downpour at any time, in its sole discretion. Changes to these Purchase and Rental Terms and Conditions are effective when posted. Your continued use of the Site and/or purchase or rental of Audio and E-Book Content or other content from the Site constitutes acceptance of these Purchase and Rental Terms and Conditions in their then current form.

Your use of the Site is governed by Downpour’s Terms of Use, which are incorporated herein by reference. In the event of a discrepancy between these Purchase and Rental Terms and Conditions and the Terms of Use, these Purchase and Rental Terms and Conditions govern.

Purchases of Audio and E-Book Content.

There are no complicated subscriptions at Downpour. We offer one convenient membership plan through which you receive credits that can be used as currency on Downpour.com to purchase Audio and E-Book Content. Credits cannot be used for rental of Audio and E-Book Content or to purchase CDs, MP3CDs, pre-loaded digital audio players or other goods. You can purchase those goods using a credit card or other authorized means of payment.

You do not have to be a member to make purchases at or obtain rentals from Downpour.com. You may also make purchases or rentals on an à la carte basis. Listen to more without committing to more.

Downpour Audiobook Club Membership

As a member, you will receive credits through which you can purchase Audio and E-Book Content. Members can purchase Audio and E-Book Content at prices significantly lower than suggested retail prices. From time to time members will also receive special member-only promotions.

Membership in the Downpour Audiobook Club is only $12.99 a month. You receive one credit for each month that you are member. You can purchase additional credits for $12.99.

Each month that you are a member you will receive your monthly credit automatically.

Your DOWNPOUR Audiobook Club membership WILL BE automatically renewed each month until you cancel.


We will automatically bill your credit card each month for your monthly membership fee at the then current rate. You will be billed at the time you enroll in the membership plan and each month thereafter on the calendar day corresponding to the commencement of your membership or the last day of a given month if your membership began on a day that is not contained in a given month. For instance, if you started your membership on January 31st, your next payment date is February 28th and your credit card will be billed on that date.

Please visit our FAQs for information regarding signing up as a member of the Downpour Audiobook Club.

Expiration of Credits.

Credits expire 1 year from the date when they were issued. For instance, if you received a credit on August 1, 2012 it will expire on July 31, 2013. Each time you use a credit to pay for Audiobook or E-book Content that credit will be deducted from the total number of credits you have in your account. When purchasing Audiobook or E-book Content, Downpour will apply your oldest credit first, so that you will always be using the credits that expire the soonest.

Downpour License.

When you purchase Audio or E-Book Content, Downpour grants you a limited, revocable, non-exclusive, non-transferable license to download or, where applicable, stream such content to your computer and/or your Authorized Devices for your personal, non-commercial use.

When you rent Audio or E-Book Content, Downpour grants you a limited, revocable, non-exclusive, non-transferable license to download and access the content you rented only for the limited term of your rental license (see additional details under Rental of Audio and E-Book Content below), and only for your personal, non-commercial use.

You agree not to alter, modify, sell, transfer, share, lease, decompile, disassemble, reverse engineer, copy, reproduce, duplicate, distribute, sell, publically perform, create derivative works therefrom or otherwise commercially exploit the Audio or E-Book Content.

Any authorized transfer, duplication or exploitation of any Audio or E-Book Content constitutes copyright infringement, inter alia, and is subject to civil and criminal penalties.

Prices (not applicable to Rentals).

You can generally purchase and download one audiobook or e-book for one credit. If particular Audio or E-Book Content requires more than one credit you will be advised of the number of credits that content requires.

Downpour reserves the right, in its sole discretion, to change prices, including the price of its membership fee, at any time and to correct pricing errors that may inadvertently occur.

If a change to your membership fee occurs, you will be notified and will have the right to cancel your membership in accordance with this policy within ten (10) business days of receipt of notice, effective as of the date of the next billing cycle.

Rentals of Audio and E-Book Content.

Audio and E-Book Content can only be played within the Downpour app.  Currently, our app supports only iOS and Android phones.  You may listen to your rented content on as many iOS or Android devices as you own.  Your rental period commences when you first start listening to the rented content, or ten (10) days from the date of purchase, whichever comes first.  The initial rental period is thirty (30) days (up to sixty (60) days for some longer books).  You may listen to the rented content as many times as you like until the rental period expires.  Upon expiration of the rental period, your access to the rented content will terminate automatically.  You may purchase an extension of the rental period, but only if the extension is purchased within thirty (30) days of the expiration of the initial rental period. 

Downpour reserves the right, in its sole discretion, to change its rental prices at any time and to correct pricing errors that may inadvertently occur.

 

Forms of Payment.

Downpour accepts most major credit cards. Your credit card information is never stored on Downpour.com. Your credit card information is stored by a third-party payment service provider that follows industry standards for the highest level of safe storage of credit card information. Our third party payment service provider is fully PCI compliant, which is the credit card industry’s safety standard for protecting credit card information. Downpour only sees the last 4 digits of your credit card, which is used only for verification purposes.

We will charge your credit card for any membership fees or charges in connection with the purchase or rental of any Audio and E-Book Content, devices, accessories or other items that you purchase along with related additional charges (including taxes and late fees as applicable). All such fees will be billed to the credit card you provided in connection with your membership or during the purchase or rental process. Downpour may use all legal means available to collect any outstanding fees should our attempts to charge your credit card fail for any reason, including any collection agency and legal fees.

Cancellation.

You can cancel your Audiobook Club membership at any time by contacting Downpour at customercare@downpour.com or by calling us at 1-855-DOWNPOUR (1-855-369-6768).

You must cancel your membership 5 days prior to the start of the new monthly term to avoid being charged for that monthly term. No refunds or credits will be given for partial months.

If you cancel your membership you will still be able to use your existing credits until they expire.

Returns.

If there is a problem with your purchase or rental from Downpour, please contact Customer Care toll-free at 1-855-DOWNPOUR (1-855-369-6768) within 30 days of the purchase or rental date to arrange for exchange or refund, if appropriate.

Audio Book and E-Book Content cannot be returned. However, if you experience technical problems accessing or using such content, Downpour will be happy to help you resolve the problem. Please contact us at customercare@downpour.com or 1-855-DOWNPOUR (1-855-369-6768) for assistance.

Please see our FAQs for further information regarding the processing of returns.

Risk of Loss.

You bear all risk of loss for completing the download of any Audio or E-Book Content after purchase or rental and for any loss of any such content after you have downloaded it, including any loss due to file corruption, virus or a computer or hard drive crash.  Audio or E-Book Content purchased or rented will generally continue to be available to you through the “My Library” section of your account (but for rented content, only for the term of your rental), however due to potential licensing restrictions or other reasons, such content may become unavailable to you in the future. Downpour will not be liable to you in the event such content becomes unavailable for further download.

Disclaimer.

All Audio or E-Book Content IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DOWNPOUR DOES NOT WARRANT THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE, ANY Audio or E-Book Content OR ANY OTHER MATERIALS OR INFORMATION PROVIDED ON THE SITE OR THAT IS AVAILABLE THROUGH THE SITE.

IF YOU DOWNLOAD ANY Audio or E-Book Content OR OTHER MATERIALS FROM THE SITE, YOU DO SO AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIALS. BY USING THIS SITE, YOU ACKNOWLEDGE THAT THE COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SITE; OR (2) EMAILS SENT FROM THE SITE, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES, WORMS, TROJAN HORSES, OR ANY SIMILAR CONTAMINATION OR DESTRUCTIVE PROGRAM. NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY OF ANY KIND.

TO THE FULLEST EXTENT ALLOWED BY LAW, THE COMPANY AND ITS REPRESENTATIVES DISCLAIM ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RESULTS, RELIABILITY, AVAILABILITY, VIRUS-FREE ACCESS, COMPLETENESS, TIMELINESS, FUNCTIONALITY, LEGALITY OR OPERABILITY OF THE SITE, ITS CONTENT OR MATERIALS CONTAINED THEREIN. YOUR ACCESS TO THE SITE, CONTENT AND MATERIALS THEREIN IS SOLELY AT YOUR OWN RISK.

THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, TO THE FULLEST EXTENT ALLOWED BY LAW.

In certain jurisdictions, the law may not permit the disclaimer of warranties, so the above disclaimer may not apply to you.

Limitations of Liability.

You acknowledge and agree that your use of the Site is at your own risk. You acknowledge and agree that, to the fullest extent permitted by applicable law, neither Downpour nor its affiliates, suppliers or third party content providers will be liable for any direct, indirect, punitive, exemplary, multiple, incidental, special, consequential or other damages arising out of or in any way related to the Site and/or iTs contents, or fOR any actions Downpour takes or fails to take as a result of communications you send to Downpour or the delay or inability to use the Site or for any information, products, or services advertised on or obtained through the Site, oR Downpour’s removal or deletion of any materials submitted or posted on its Site or otherwise arising out of the use of the Site or its content, whether based on contract, tort, strict liability or otherwise, even if Downpour, its affiliates or any of its suppliers have been advised of the possibility of damages. This disclaimer applies, without limitation, to any damages or injury arising from any failure of performance, error, omission, interruption, deletion, defects, delay in operation or transmission, computer viruses, file corruption, communication on-line failure, network or system outage, your loss of profits or theft, destruction, unauthorized access to, alteration of, loss oF use of any record or data, and any other tangible or intangible loss. You specifically acknowledge and agree that neither Downpour nor its suppliers shall be liable for any defamatory, offensive or illegal conduct of any User of the Site. No recovery may be sought or received for damages other than out-of-pocket expenses. You agree that any cause of action arising out of or related to the Site or the Terms of Use must be filed within one (1) year after the cause of action accrues or the cause of action is permanently barred. Because some jurisdictions do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of liability for consequential or incidental damages, all or a portion of the above limitation may not apply to you.

If you are A California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

IN NO EVENT SHALL DOWNPOUR, ANY CONTENT PROVIDER OR ANY OTHER PROVIDER OF SERVICES, DATA, AND/OR INFORMATION FOR COMPANY BE LIABLE IN ANY WAY FOR ANY DIRECT OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR PROFIT, LOSS OF REVENUE, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE MATTER (AND SIMILAR ECONOMIC LOSS) OR BUSINESS INTERRUPTION) OR FOR ANY PUNITIVE, MULTIPLE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SITE AND ITS CONTENT, EVEN IF DOWNPOUR, A THIRD PARTY OR A DOWNPOUR AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGE.

Force Majeure.

Downpour is not be responsible for any delay or failure in performance of any kind to the extent such delay or failure is caused by acts of God, information providers or other service providers, public enemy, war, terrorism, any civil or military authority, any accident, explosion, fire, storm, earthquake, flood, strike, riots, embargo, computer outage or virus, telecommunications failure or other casualty, labor dispute or any other circumstances beyond Downpour’s reasonable control.

Governing Law.

Any claim relating to the Site, any Audio or E-book Content or these Purchase and Rental Terms and Conditions shall be governed by the laws of the State of Oregon without regard to its conflict of law provisions. You agree to the personal jurisdiction by and venue in the state and federal courts in Jackson County, Oregon, and waive any objection to such jurisdiction or venue. THE PARTIES HERETO EXPRESSLY AND IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY AND ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON GROUNDS OF FORUM NON CONVENIENS) WHICH THEY MAY NOW OR HEREINAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN CONNECTION WITH ANY CLAIM, DEMAND OR ACTION ARISING OUT OF THIS AGREEMENT.

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