TERMS OF USE

Effective: August 1, 2012

Last Updated: October 27, 2014

Welcome to Downpour.com (the “Site”). Please read these Terms of Use before using the Site. The Terms of Use constitute a binding agreement between you and Downpour (referred to as “Downpour,” the “Company,” "we" and "our"). The Terms of Use may be updated from time to time and the latest version will be posted on the Site.

By accessing the Site or using the services provided herein, you agree to be bound by the Terms of Use in its then current form. Accordingly, you should visit this page periodically to review the most current Terms of Use.  If you do not agree to the Terms of Use, please do not use the Site or any of the services provided on the Site.  Users who violate these terms may have their access and use of the Site suspended or terminated, at the discretion of the Company.

 

The Downpour Service.

 

            By accessing the Site, you will be able, amongst other things, to access directly and indirectly through the Site and through other means made available by Downpour licensed and original audiobook and e-book content and related matter (“Audio and E-Book Content”) for playback on various devices authorized by Company (“Authorized Devices”).  Additional terms and conditions may apply to such purchases and rentals and to specific portions or features of the Site, including contests, promotions or other similar features, all of which are incorporated into these Terms of Use by reference.  Please review the Company’s terms and conditions regarding purchases, rentals and membership plans (“Purchase and Rental Terms and Conditions”), which govern purchases and rentals made from or through the Site and which are incorporated herein by reference. 

 

            You agree to abide by the Purchase and Rental Terms and Conditions and such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or feature.  In the event of a discrepancy between the Terms of Use, the Purchase and Rental Terms and Conditions and any other terms and conditions relating to specific portions or features of the Site, the Purchase and Rental Terms and Conditions or terms and conditions relating to specific portions or features of the Site control with respect to purchases and rentals or specific portions or features of the Site.

 

Eligibility.

 

            You must be eighteen (18) years of age or older to use the Site.  You must also have a valid email address (e.g., an authentic and accurate address which neither misleads nor impersonates another person) and a valid credit card or other form of authorized payment. 

 

            Downpour, in its absolute and sole discretion, reserves the right to deny and/or terminate access to the Site, refuse orders placed through the Site and remove or edit the content of the Site at any time and for any reason.

 

Use of Site.

 

            In allowing you access to the Site, Downpour is granting you a limited license to use the Site for your own personal, noncommercial use.

 

            You are not authorized to download any content, including Audio and E-Book Content (collectively, “Content”), except as expressly permitted in the Purchase and Rental Terms and Conditions or within the Site.  You may not alter or otherwise modify, reproduce, duplicate, copy, sell or otherwise commercially exploit the Site, its Content or any information or material therein or access any information or area of the Site which you are not expressly authorized to access (including without limitation, Downpour’s security system) without Downpour’s prior written authorization. 

 

            You agree that your use of the Site and its Content will be in compliance with all applicable laws and regulations and that you will not use, or knowingly allow any other person to use, the Site or its Content for or in connection with any illegal purpose or activity.

 

            Any unauthorized use of the Site or its Content will result in the forfeiture and termination of this license and any and all rights extended to you.

 

            By accessing the Site, you acknowledge and agree that you are solely and exclusively responsible for protecting your own computer, device and software in any and all respects.

 

            You acknowledge that, because some aspects of Downpour’s services, including the provision of Audio and E-Book Content and administration of the Site, entails the ongoing involvement of Downpour, if Downpour changes any part of or discontinues any service, which Downpour may do at its discretion, you may not be able to use the Audio and E-Book Content to the same extent as prior to such change or discontinuation, and that Downpour shall have no liability to you in such case.

 

Accuracy, Completeness and Timeliness of Information and Content on the Site.

 

            Downpour is not responsible if any information or Content available on the Site is not accurate, complete or current.  Downpour reserves the right to modify the Site and any content at any time without notice, but has no obligation to update the Site or its Content.  It is your responsibility to monitor changes to the Site.

 

Third Party Links.

 

            The Site may contain links to web sites of, and advertisements for, third parties.  Downpour has not reviewed all links and is not responsible or liable for any material, content, information, product, web sites or web pages accessible from or through such links or advertisements.  The inclusion of a link or advertisement does not imply endorsement of such link or advertisement by Downpour.  Your link to any third party site or advertisement is at your risk.

 

Copyrights and Trademarks.

 

            All Content on the Site (including, without limitation, all graphics, artwork, logos, designs, images, audio clips, buttons, icons, digital downloads, interfaces, code and software, text and data compilations, as well as the selection and arrangement thereof) is the exclusive property of and owned by Downpour or its licensors or other suppliers (“Third Party Providers”) and is protected by United States and international copyright and other applicable laws. 

 

            All software used in connection with the Site is the property of Downpour or its Third Party Providers and is protected by United States and international copyright and other applicable laws.

 

            Trademarks, logos and service marks displayed on this site are registered and unregistered marks of Company and/or the Third Party Providers and are the property of their respective owners.  Nothing on this Site shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark, logo or service mark displayed on the Site without the owner’s prior written permission.

 

User Conduct.

 

            You agree to use the Site only for lawful purposes.  You agree not to take any action that might compromise the security of the Site, render the Site inaccessible to others, or otherwise cause damage to the Site or its Content.  You agree not to use the Site in any manner that might interfere with the rights of third parties.  Downpour reserves the right to terminate or restrict your use of our service, without notice, for any or no reason whatsoever.

 

Submissions.

 

            You agree, warrant and represent that and any and all disclosures, comments, reviews, feedback, suggestions, ideas, and other submissions, including, without limitation, photos and queries (“Submissions”) submitted by you to or through the Site or that you post on or in connection with the Site (i) is exclusively owned or controlled by you; (ii) is accurate and does not violate the rights of, or cause injury to, any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; (iii) is not illegal, obscene, defamatory or threatening; (iv) does not contain viruses or political content; and (iv) does not constitute any form of spam (including, without limitation, chain letters and mass mailings).

 

            You are and shall remain solely responsible for the content of any Submissions which you make.

 

            You grant Downpour, gratis, an irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, perpetual worldwide license to any and all Submissions submitted by you to or through the Site or that you post on or in connection with the Site, including, by way of example, the right to license, sublicense, modify, reproduce, edit, adapt, publish, translate, distribute and display same at any time or to refrain from doing so for any reason or no reason whatsoever.

 

            Downpour is under no obligation to use any Submission or maintain any Submission in confidence or to pay to use or otherwise proffer compensation as and for any Submission.  Downpour, in its sole and absolute discretion, may remove or edit Submissions at any time.

 

            You hereby fully indemnify and hold Downpour harmless from and against any and all claims, losses and liabilities arising from the Submissions and each warranty and representation from you. 

 

Passwords.

 

            If you open or otherwise register for an account on the Site, you are solely and exclusively responsible for maintaining the confidentiality of your account and password and for restricting access to your computer.  You agree to accept full and sole responsibility for all activities that occur under your account or password.

 

Privacy.

 

            The Company’s Privacy Policy governs the use of personal and identifying information on the Site. 

 

Disclaimer.

 

            THE SITE AND THE CONTENT AND MATERIALS CONTAINED THEREIN ARE 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, ITS CONTENTS OR MATERIALS OR ANY INFORMATION PROVIDED ON THE SITE OR THAT IS AVAILABLE THROUGH THE SITE.

 

            IF YOU DOWNLOAD ANY CONTENT OR 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 any information you send or receive during Your use of the Site may not be secure and may be intercepted by unauthorized parties.  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 Company 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 Company takes or fails to take as a result of communications you send to Company or the delay or inability to use the Site or for any information, products, or services advertised on or obtained through the Site, or Company’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 Company, 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 Company 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 and Company 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. 

 

Indemnification.

 

            You agree to indemnify, defend and hold harmless Company and its affiliates and their officers, directors, employees, contractors, agents, licensors, service providers, subcontractors and suppliers from and against any and all suits, losses, claims, demands, liabilities, expenses, damages and costs, including reasonable attorneys fees, court costs and expenses, arising or resulting from your use of the Site, its  Content and/or any other materials it contains, your violation of these Terms of Use, or your violation of any applicable law, statute, ordinance, regulation or any third party's rights, including but not limited to, copyright infringement, harm to a third party's trademark or other intellectual property rights, or any claim of defamation, libel or slander.  This obligation survives the termination of this Agreement.

 

            If you cause a technical disruption of the Site or the systems transmitting the Site to you or others, you agree to be responsible for any and all losses, liabilities, expenses, damages and costs, including reasonable attorneys fees and court costs, arising or resulting from that disruption.  Company reserves the right, at its own expense, to assume exclusive defence and control of any matter otherwise subject to indemnification by you and in such case, you agree to cooperate with Company in the defence of such matter.

 

Claims Regarding Infringement.

 

            Notice of Infringing Material:

 

            To report a claim for copyright infringement under the U.S. Copyright Act, please provide our Designated Agent with written notification pursuant to 17 U.S.C. § 512(c) containing the following details: 

 

            (a)        identification of the copyrighted work claimed to have been infringed, or, if multiple works are claimed to be infringed, a representative list of such works;

 

            (b)       identification of the claimed infringing material and the location of such material;

 

            (c)        your contact information, including your name, address, telephone number, and, if available, your email address;

           

            (d)       a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

 

            (e)        a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and

 

            (f)        your physical or electronic signature.

 

            Our Designated Agent to receive notifications of claimed infringement is Contracts Administrator, DownPour.com, 31 Mistletoe Road, Ashland, Oregon 97520; email: copyright@downpour.com; Phone: 541-488-6035, ext. 59; Fax: 541-482-9294.

 

            Counter Notification:

 

            If material that you have posted has been removed or access to such material has been disabled, you may send our Designated Agent written counter-notification pursuant to 17 U.S.C. § 512(g) containing the following details: 

 

            (a)        identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

 

            (b)       a statement under penalty of perjury that you have a good faith belief that

the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

 

            (c)        your contact information, including your name, address, telephone number and email address;

 

            (d)       a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which the Company may be found, and that you accept service of process from the person who provided the notification of infringement; and

 

            (e)        your physical or electronic signature.

 

            Upon receipt of a counter notification by our Designated Agent, we may send a copy to the complaining party informing them that we may replace the removed material or cease disabling it in ten (10) business days.  Unless the copyright owner files an action seeking a court order against the party who originally provided the material, the removed material may be replaced, or access to it may be restored, in ten (10) to fourteen (14) business days after receipt of the counter notification, at our sole discretion.

 

            Downpour has adopted a policy of terminating, in appropriate circumstances and in the sole discretion of Downpour, any users who are deemed to be repeat copyright infringers.  We may also in our sole discretion limit access to the Site and/or terminate the account of any member or user who infringes upon any intellectual property rights of others, whether or not there is any repeat infringement.

 

Notices.

 

            Downpour may provide notices to you by sending them to the email address associated with your account.  Any notice sent to you by email will be deemed received when sent.  Any notice that you send to Downpour must be sent by mail to the following address or to such other address as we provide in a notice to you or on the Site:  Customer Care, Downpour.com, 31 Mistletoe Road, Ashland, Oregon 97520.

 

Governing Law.

 

            Any claim relating to the Site 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.

 

Miscellaneous.

 

            If any portion of any provision of the Terms of Use is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions shall remain in full force and effect.

 

Questions or Comments?

 

            For questions, comments, or assistance, Downpour invites you to visit the FAQ section of the Site or to contact Downpour at 1-877-DOWNPOUR or write to us at

Customer Care, DownPour.com, 31 Mistletoe Road, Ashland, Oregon 97520; email: customercare@downpour.com.