Effective August 1, 2012
Last Updated: February 1, 2019
The Downpour Service
Promotions and Offers
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 that neither misleads nor impersonates another person) and a valid credit card or other form of authorized payment.
Use of Site
In allowing you access to the Site, Downpour is granting you a limited, revocable, nonexclusive, nontransferable, nonassignable, nonsublicensable license to use the Site for your own personal, noncommercial use.
You agree that your use of the Site and the Audiobook and Print Content will be in compliance with all applicable laws and regulations and that you will not use, or allow any other person to use, the Site or the Audiobook and Print Content for or in connection with any illegal purpose or activity.
You are responsible for all software, hardware, services (such as Internet service), and other equipment necessary to access and use the Site, including all related expenses, if any. 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 Audiobook and Print 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 or purchase the right to use the Audiobook and Print Content to the same extent as prior to such change or discontinuation, and Downpour shall have no liability to you in such case.
Accuracy, Completeness, and Timeliness of Information and Audiobook and Print Content on the Site
Downpour is not responsible if any information or Audiobook and/or Print Content available on the Site is not accurate, complete, or current. Downpour reserves the right to modify the Site and any Audiobook and/or Print Content at any time without notice, but has no obligation to update the Site or the Audiobook and/or Print Content. It is your responsibility to monitor changes to the Site. There may be times when the Site; the Audiobook and/or Print Content; or certain features or parts of the Site become unavailable on an unscheduled basis. We will not be liable for any temporary or permanent withdrawal, modification, unavailability, suspension, or discontinuance of the Site; any Audiobook and/or Print Content; or any service available through the Site.
Third Party Links
The Site may contain links to websites of, and advertisements for, third parties. Downpour has not reviewed all links and is not responsible or liable for any material, content, information, product, websites 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 Audiobook and Print Content on the Site (including, without limitation, all graphics, artwork, logos, designs, images, audio clips, audiovisual clips, buttons, icons, digital downloads, interfaces, code and software, text and data compilations, as well as the selection and arrangement thereof) and the overall “look and feel,” color combinations, and other graphical elements of the Site are the exclusive property of and are owned by Downpour or its licensors or other suppliers (for purposes of this Copyrights and Trademarks Section, “Third Party Providers”) and are 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.
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 the Audiobook and/or Print Content. You agree not to use the Site in any manner that might interfere with the rights of third parties. You agree not to use the Site to design, develop, test, update, operate, modify, maintain, support, market, advertise, distribute, or otherwise make available any program, application, or service (including without limitation any device, technology, product, computer program, mobile device application, website, or mechanical or personal service) that enables or provides access to, use of, operation of, or interoperation with the Site. You agree not to attempt to access data or materials not intended for you; not to create a database by downloading and/or saving any Audiobook and/or Print Content, whether directly or through intermediaries; not to transmit, disclose, collect, or store personal information about others; not to log into an account that you are not authorized to access; and not to test the vulnerability of our network and/or security systems or otherwise breach or circumvent our security in any way. Although we attempt to prevent viruses and other malicious software from being passed along through the Site, you agree that protection of your own software, personal computer, and other devices from malicious software is your responsibility.
You may not use any manual or automatic website search/retrieval computer hardware or application to retrieve or in any way gather information or content from the Site (including without limitation) Audiobook and/or Print Content) or reproduce or circumvent the structure or presentation of the Site without our prior written consent. As a limited exception, general purpose Internet search engines will be entitled to access the Site and use limited visual content from the Site if, in all cases: (i) They provide a direct hyperlink to the relevant web page from the Site; (ii) they link to and use the visual content solely in connection with their activities as a general purpose Internet search engine; and (iii) they access the Site from a stable IP address using an easily-identifiable agent. Downpour may terminate this limited exception for general purpose Internet search engines at any time and in its sole discretion, upon written notice including, without limitation, email notice.
Downpour reserves the right to terminate or restrict your use of our Site and services, without notice, for any or no reason whatsoever.
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 without limitation any third party copyright, trademark right, right of privacy, right of 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) or commercial solicitation. You must not use any false email address or other contact information, impersonate any person or entity, or otherwise mislead as to the origin of your Submissions. We reserve the right, but are not obligated, to monitor and to remove or edit any or all of your Submissions. Downpour takes no responsibility for and assumes no liability for and shall not be liable for any Submissions posted to the Site.
You are and shall remain solely responsible for the content of any Submissions you make.
You grant Downpour an unrestricted, irrevocable, non-exclusive, transferable, sub-licensable (through multiple tiers of sublicensees), royalty-free, fully-paid-up, perpetual, and 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, for use in connection with our Site or our business generally (including for advertising and marketing purposes), and in connection with any media, whether now known or hereafter developed. This license includes, by way of example, the right to license, sublicense, modify, reproduce, edit, adapt, publish, translate, create derivative works from, distribute, and display the Submissions at any time or to refrain from doing so for any reason or no reason whatsoever. This license also includes the right to use the name that you submit with your Submissions; but you acknowledge and agree that Downpour is not under any obligation to use your name or otherwise attribute the Submissions to you. This license is perpetual, even if you later remove your Submission from the Site, and you acknowledge and agree that we may still store and use your earlier Submission.
Downpour is under no obligation to use any Submission or maintain any Submission in confidence or to pay to use or otherwise proffer compensation for any Submission. Downpour may or may not prescreen Submissions, and Downpour, in its sole and absolute discretion, may refuse to post your Submission or may remove or edit Submissions at any time.
Submissions posted by our Site users do not reflect our views. Your reliance on any Submissions will be at your own risk.
You acknowledge and agree that Downpour may have something similar to your Submissions already under consideration or development, and Downpour will own all right, title, and interest in and to what it creates or develops without use of your Submissions.
You acknowledge and agree that Downpour shall have no responsibility or liability to you or any third party for any use or misuse of your Submissions by any other Site user or other third party. You hereby fully indemnify and hold Downpour and its subsidiaries, affiliates, licensors, service providers, subcontractors, and suppliers, and each of their respective officers, directors, members, shareholders, employees, representatives, and agents (collectively, the “Indemnitees”) harmless from and against any and all claims, losses, and liabilities arising from the Submissions, our use of the Submissions, and each warranty and representation from you.
To buy Audiobook and/or Print Content from the Site, you must register for an account. If you register for an account on the Site, you agree not to use a false or misleading name or a name you are not authorized to use. You must provide accurate and complete information for your account. Providing false, incomplete, or incorrect details could result in rejection of any orders you make. You are solely and exclusively responsible for maintaining the confidentiality of your account and password and for restricting access to your computer or device. You agree not to share your account or password with any third party. You agree to accept full and sole responsibility for all activities that occur under your account or password, whether with or without your knowledge. You also agree to exit from your account at the end of each session. You must tell us immediately if you become aware of any unauthorized use of your account. We may suspend or terminate your account in such event.
THE SITE AND THE AUDIOBOOK AND PRINT CONTENT AND OTHER MATERIALS CONTAINED THEREIN AND SERVICES PROVIDED THROUGH THE SITE 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, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. DOWNPOUR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE, THE AUDIOBOOK AND PRINT CONTENT, OR OTHER MATERIALS OR ANY INFORMATION OR SERVICES PROVIDED ON THE SITE OR THAT IS AVAILABLE THROUGH THE SITE.
IF YOU DOWNLOAD OR PURCHASE ANY AUDIOBOOK AND PRINT 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 AUDIOBOOK AND PRINT CONTENT AND/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 AND/OR AUDIOBOOK AND/OR PRINT CONTENT; 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. ANY DATA TRANSMITTED THROUGH SITE IS DONE AT YOUR OWN RISK.
TO THE FULLEST EXTENT ALLOWED BY LAW, THE COMPANY AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE AND CONTENT PROVIDERS, SUBCONTRACTORS, AND SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (COLLECTIVELY, “RELEASEES”) DISCLAIM ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR THE ACCURACY, RESULTS, RELIABILITY, AVAILABILITY, VIRUS-FREE ACCESS, COMPLETENESS, TIMELINESS, FUNCTIONALITY, LEGALITY, OR OPERABILITY OF THE SITE, THE AUDIOBOOK AND PRINT CONTENT, OR OTHER MATERIALS CONTAINED THEREIN. YOUR ACCESS TO AND USE OF THE SITE, THE AUDIOBOOK AND PRINT CONTENT, AND OTHER MATERIALS THEREIN IS SOLELY AT YOUR OWN RISK. THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS, TO THE FULLEST EXTENT ALLOWED BY LAW.
All AUDIOBOOK AND PRINT CONTENT PURCHASED THROUGH THE SITE ARE SUBJECT ONLY TO THE APPLICABLE WARRANTIES OF THEIR RESPECTIVE MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS, IF ANY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES WITH RESPECT TO THE AUDIOBOOK AND PRINT CONTENT LISTED OR PURCHASED ON OR THROUGH THE SITE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HEREBY EXPRESSLY DISCLAIMS ALL LIABILITY FOR AUDIOBOOK AND PRINT CONTENT DEFECT OR FAILURE; CLAIMS THAT ARE DUE TO NORMAL WEAR AND TEAR; AND AUDIOBOOK AND PRINT CONTENT MISUSE, ABUSE, MODIFICATION, IMPROPER SELECTION, NONCOMPLIANCE WITH ANY CODES, OR MISAPPROPRIATION.
In certain jurisdictions, the law may not permit the disclaimer of warranties, so, solely to the extent you are subject to such jurisdiction, the above disclaimer may not apply to you.
Limitations of Liability
YOU EXPRESSLY WAIVE ANY STATUTORY OR OTHER PROTECTIONS THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THESE DISCLAIMERS TO INCLUDE ONLY THOSE CLAIMS THAT YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THE RELEASE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU EXPRESSLY 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.”
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 defense and control of any matter otherwise subject to indemnification by you and in such case, you agree to cooperate with Company in the defense of such matter.
Claims Regarding Infringement
Downpour will respond to notices of alleged copyright infringement that comply with the requirements set forth in this “Claims Regarding Infringement” Section. Downpour does not act as an arbiter or judge of disputes about intellectual property rights. It is our policy to remove content posted by Site users, which content we believe in good faith is infringing a third party’s copyright. By removing content, as a prudential matter, we are not endorsing or validating a claim of infringement. If we remove user content from the Site, we will make a good-faith attempt to contact the party responsible for posting or displaying the content so such party may make a counter-notification as provided for below.
Notice of Infringing Material:
If you believe your work has been displayed or otherwise used on the Site in a manner that infringes your copyright, you must provide written notification of such to our Designated Agent via mail and/or email. Please note that you may be liable for damages, including without limitation attorneys’ fees and costs, if you materially misrepresent that your copyright has been infringed by content on the Site. If you are unsure whether your copyright has been infringed, we recommend that you contact an attorney before sending notice to our Designated Agent.
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:
- 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;
- identification of the claimed infringing material and the location of such material;
- your contact information, including your name, address, telephone number, and, if available, your email address;
- 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;
- 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
- 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: email@example.com; Phone: 541-488-6035, ext. 59; Fax: 541-482-9294.
If your notice contains the required information, and if we have a good-faith belief that the content on the Site is infringing your copyright, we will remove the content from the Site’s web page(s) that is(are) listed in your notice.
Unless prohibited by law, we may provide all of the information in your notice (including without limitation your identifying information) to the user who posted the content.
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. If you make a counter-notification, please note that you may be liable for damages, including without limitation attorneys’ fees and costs, if you materially misrepresent that your content is not infringing the copyright of a third party. If you are unsure whether your content infringes the copyright of a third party, we recommend that you contact an attorney before sending a counter-notification to our Designated Agent. Include this information in your counter-notification:
- 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;
- 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;
- your contact information, including your name, address, telephone number and email address;
- 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
- your physical or electronic signature.
Upon receipt of a counter-notification by our Designated Agent, we may (unless prohibited by law) send a copy of your counter-notification (including without limitation your identifying information) 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 at our sole discretion. In doing so, we are not making a determination as to whether any copyrights or other IP rights have or have not been infringed.
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.
IMPORTANT NOTE: THE PRECEDING INFORMATION IS PROVIDED EXCLUSIVELY FOR NOTIFYING US THAT YOUR COPYRIGHT MAY HAVE BEEN INFRINGED. ALL OTHER INQUIRIES, SUCH AS PRODUCT OR SERVICE RELATED QUESTIONS AND REQUESTS, WILL NOT RECEIVE A RESPONSE THROUGH THIS PROCESS.
Audit Rights and Enforcement
Your Discontinued Use
Notices and Electronic Communications
Governing Law and Jurisdiction
Any claim relating to the Site shall be governed by the laws of the State of Oregon without regard to its (or any other jurisdiction’s) conflict of law provisions. For all such claims and disputes, you agree to the exclusive 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 WAIVE 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. THE PARTIES HERETO EXPRESSLY AND IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY.
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 information or content providers or 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.
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: firstname.lastname@example.org.
California Consumer Rights
Under Cali. Civil Code Section 1789.3, Site users who are California residents are entitled to the following notice: The provider of the Site is shown immediately above. Information regarding fees to purchase Audiobook and Print Content from the Site are shown at the Site prior to purchase. If you are a California resident, you may report complaints with the Site to or request information regarding the same from the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210. We request that you first report complaints directly to us and try to resolve them with us before contacting the Complaint Assistance Unit.