Effective Date: May 16, 2023

A. THE SERVICE TERMS

Your use of the Application is subject to your acceptance of these terms and conditions (“Terms”). These Terms govern the use of the audiobook mobile application ‘Odiyo’ (“Application” or “Odiyo”) or any product, service or content provided through such Application (collectively, the “Services”). It is important that you read all the Terms carefully as they form a binding agreement between you (“you” or “your”) and us. For the purposes of these Terms, the words “Odiyo”, “we” and “us” refer to Odiyo Ltd.

By using any of the Services you acknowledge and agree that you have read and understood these Terms and agree to be bound by this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS OR USE THE SITE, APPLICATION OR SERVICES.

The following documents and terms are incorporated into this Agreement and form a part of these Terms:

– our Privacy Notice located in the App
– any other terms and conditions of a particular service that are posted in the Application
– any disclosures, limitations or other information provided with, or printed or posted on, any materials associated with the Services

Odiyo reserves the right to update, revise, amend or unilaterally change the Terms or the information in the Application at any time without notice. When changes are made we will update these Terms. It is the responsibility of the user to check the Application periodically for changes to these Terms. Your continued use of the Application and/or Services following the notification of any modification to the Terms, constitutes acceptance of those changes.

If you object to any of the terms and conditions of this Agreement, or any subsequent modifications to them, or become dissatisfied with your use of the Applications or Services in any way, you shall IMMEDIATELY DISCONTINUE your use of the Applications and/or Services. NO OTHER REMEDY, LEGAL OR OTHERWISE, IS AVAILABLE TO YOU.

B. ACCESSING THE SERVICE

1. Registration & Account Information

In order to access the Services you must register as a subscriber of the Application. You must provide us with accurate, complete and up-to-date information as requested on the registration form. You agree that the information supplied with your registration form will be truthful, accurate and complete. It is your responsibility to inform us of any changes to that information. All personal information you provide us as a member will be treated in accordance with our Privacy Notice.

If you are under 18 years of age, you must obtain a parent/guardian’s consent prior to using the Application.

Once you become a member of the Application, you will receive a username and a Password. You are entirely responsible for all activities which occur under your username and Password, including unauthorised use of your or any other credit card. You must notify us immediately if you become aware of any unauthorised use of your username and Password. If you forget or lose your password, you should request a new password by visiting the ‘Forgot your Password’ section on the sign in page.

You also agree that you will only register in your own name. Each username and password must be used by a single user and is not transferable.

Please note that the sending of personal information over the internet may not be secure and can be intercepted by third parties or incorrectly delivered. You should not divulge personal information over the internet unless you are using a secure or encrypted communications technology. We shall be entitled, but not obliged, to record all communications from, or instructions given by, you to us, or messages sent by us to you through the Application.

2. Social Media Sign Up

You have the option to register using a social media account and may link your account with online accounts you may have with third party service providers (each such account, a “Third Party Account”) by either: (i) providing your Third Party Account login information at Sign Up; or (ii) allowing Odiyo to access your Third Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third Party Account.

You represent that you are entitled to disclose your Third Party Account login information to Odiyo and/or grant Odiyo access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating Odiyo to pay any fees or making Odiyo subject to any usage limitations imposed by such third party service providers.

By granting Odiyo access to any Third Party Accounts, you understand that (i) Odiyo may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the “Social Network Content”) so that it is available on and through the Application via your account, including without limitation any friend lists, and (ii) Odiyo may submit and receive additional information to your Third Party Account to the extent you are notified when you link your account with the Third Party Account. Depending on the Third Party Accounts you choose and subject to the privacy settings that you have set in such Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your account on the Application.

PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. Odiyo makes no effort to review any Social Network Content for any purpose, including but not limited to, for accuracy, legality or non-infringement, and Odiyo is not responsible for any Social Network Content.

You will have the ability to disable the connection between your account on the Application and your Third Party Accounts at any time. At your request made via email to our email address listed below, or through your account settings (if applicable), Odiyo will deactivate the connection between the Application and your Third Party Account and delete any information stored on its servers that was obtained through such Third Party Account.

3. Access Limitations and Restrictions

Access to the Services may be limited, delayed or unavailable during periods of peak demand, market volatility, system upgrades or maintenance, communication system problems, or circumstances beyond our reasonable control. Odiyo will not be held liable for any issues arising from these periods of interruptions.

You are responsible for all actions that take place as a result of access to or use of any Service whether the access was made by you or by a third party using the Service. Any device you may use to access our Application is your sole responsibility and if you access the service through a mobile device, your wireless service carrier or mobile network operator’s standard charges, data rates and other fees may apply which you are solely responsible for.

C. SUBSCRIPTIONS & PAYMENTS

1. A La Carte

Odiyo offers access to its collection of audiobooks on a pay as you go (“A La Carte”) basis whereby customers purchase each audiobook they wish to access.

With respect to all A La Carte purchases, except where noted otherwise, any list price displayed represents the full retail price of the audiobook. Prices of all audiobooks or other Odiyo content are subject to change at any time in Odiyo’s sole discretion. All such pricing changes will be immediately reflected in the Application.

You bear all risk of loss for completing the download of Odiyo content after purchase, once we have made such content available to you in your account, and for any loss of Odiyo content you have downloaded, including any loss due to a file corruption or a computer or hard drive crash. Purchased audiobooks or other Odiyo content will generally continue to be available in your account but may become unavailable due to potential content provider licensing restrictions or other reasons and Odiyo will not be liable to you if the audiobook or Odiyo content becomes unavailable for further download.

2. Pre-Orders

Odiyo’s price for unreleased audiobooks may fluctuate prior to the release date. In any event, Odiyo shall honour the price of the Odiyo content at the time it was originally placed. Likewise, the customer shall pay the listed price at the date of purchase regardless of price reductions thereafter.

If you pre-order an audiobook and choose to use a Credit, the Credit is claimed immediately. If you pre-order an audiobook and choose to be charged a la carte pricing for the purchase rather than use a Credit, your method of payment will not be charged until the item is available for download.

Active pre-orders can be cancelled by logging into your account. If a pre-order was made using a Credit, cancelling the pre-order will return the Credit to your account. Completed pre-orders are non-refundable. Odiyo reserves the right to modify or cancel pre-orders, with notice to you.

3. Membership Plans

As part of our Service, we may offer membership plans and may change them and their features from time to time.

4. Credits

As part of a membership plan or a Service promotion, we may issue redeemable credits for content on the Application (“Credits”). Credits may only be redeemed on the Service, have no cash value, are non-transferrable and non-refundable. All Credits are valid for a limited time as described in the applicable membership and promotional terms and conditions. Credits expire immediately upon the cancellation or termination of your membership unless used prior to cancellation or termination.

5. Promotional and Membership Content

Odiyo may make content available from time to time through the Application for which a purchase is not required. You will have access to this content only for so long as we make it available generally or, where it is provided as a benefit of a membership plan, for so long as you remain an active member of your plan in good standing. We may also remove this content from your account, devices and applications or otherwise restrict your ability to access it.

6. Promotions

Odiyo may offer certain customers various trial or other promotional memberships, which are subject to the Terms except as otherwise stated in the promotional offers. We reserve the right, in our sole discretion, to determine your eligibility. In the case of a promotional free trial your membership shall automatically renew and your credit card (or other payment method) will be charged on the day after your trial expires. You must cancel before the end of your free trial if you do not wish to be charged. The day your account is activated is considered day one of your free trial.

If a trial offer or a promotion requires you to have a valid payment instrument on file, such as a credit card or other permitted payment method, we may validate that payment method including by requesting a temporary authorization from the financial institution issuing your payment instrument. If we determine that your payment instrument is invalid, without limiting any of our other rights, we may revoke any benefits, Credits or content you may have received as part of the offer.

D. CONTENT

1. Content Availability

The Services are available internationally, however, the library of available content will vary by region based on distribution rights on a per-title basis.

We may add or remove purchasable audiobooks, promotional and membership content (collectively, “Content”) from our catalogue, membership plans and our Service at any time and make no guarantee as to the availability of specific Content at any given time and in any membership plan or as to any minimum amount of Content in any membership plan. Some of our Content may be offered in limited territories, and we may use geo-filtering technology to restrict access outside of those territories.

2. Grant of Rights

When you purchase Odiyo content, we grant you a limited, revocable, non-exclusive, non-transferable license to download or stream the audiobook to your device(s) solely for your personal and non-commercial use. You shall not sell, transfer, lease, modify, distribute or publicly perform the audiobook in any manner and you shall not exploit it commercially.

You agree to not decompile, disassemble, or reverse engineer the Odiyo content, or modify the Odiyo content or create any derivative works therefrom. The license to the Odiyo content you purchase will continue for as long as your copy of Odiyo content exists pursuant to these Terms.

3. Intellectual Property

For the purposes of these Terms “Intellectual Property Rights” means all copyright, patents, registered and unregistered trademarks, registered and unregistered design rights, rights in databases and topography rights and other intellectual property rights, all rights to bring an action for passing off, all rights to apply for protection in respect of any of the above rights and all other forms or protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

You may only download, use, view and display the Application (and the Intellectual Property Rights therein) solely for the purposes of using the Services and in accordance with the terms of this Agreement. Save for where otherwise specified, the Intellectual Property Rights in, and contents of, the Application are owned by Odiyo or its licensors. Reproduction, copying, modification, alteration, or adaptation of part or all of the contents of the Applications (including any graphics or trademarks) in any form is prohibited without Odiyo’s prior consent, other than that which you are authorised by Odiyo to print or download for personal, non-commercial use.

You acknowledge that we are the owners or licensees of a number of trademarks including Odiyo, and that the Merchant and any other third party providers are owners or licensees of their trademarks. Nothing herein contained shall be construed as conferring upon you any right, title or interest in said or any trademarks and copyright. We reserve the right to change the Services or Application including withdrawing them completely.

E. PROHIBITED USES

1. Limitations of Use

You expressly agree to only use the Services and the Application for your own individual, personal and non-commercial purposes. In using the Application you agree that you shall not:

a) Use the Services or related content to reproduce copyrighted materials
b) Copy, store, edit, change, prepare any derivative work of or alter in any way the Services or related content
c) Auto-scrape the Application
d) Download content by means other than the Odiyo Application proprietary software
e) Make the Services or related content available over a network (other than Odiyo’s network) where it could be used by others
f) Provide your password to any other person
g) Share audio content with another person
h) Translate, reverse engineer, decompile, disassemble, modify or create derivative works based on content available through Services, or any portion of them for your own personal or commercial use, except as expressly allowed under applicable law and these Terms
i) Rent, lease or sublicense, sell, transfer, distribute or publicly perform the Odiyo content in any manner and you will not exploit it commercially
j) Improperly interact with Customer Service employees over email, telephone or in-app live chat; these include but are not limited to: verbal or written harassment, sexual solicitation, and uttering threats
k) Use the Services in any way that violates these Terms

2. Damage to Odiyo

You agree not to use the Services or the Application in any way that:

a) could damage, disable or overburden any Odiyo server or facility, or the networks connected to any Odiyo server or facility
b) interferes with any other party’s use and enjoyment of the Services
c) could damage Odiyo’s business, reputation or employees

You agree not to resell or commercialize any of the Services whether for profit or otherwise.

3. Location & Service Restrictions

Odiyo makes no representation that the Application is available for use outside of the Caribbean, or that the Services or other content on the Application are appropriate or available for use outside the Caribbean region.

If you choose to access the Application from other locations you do so on your own initiative and at your own risk. You are responsible for complying with local laws, if and to the extent local laws are applicable.

We reserve the right to accept or refuse membership or to restrict use of the Service in our discretion. You may not transfer or assign your membership or any Service benefits. We may take actions we deem reasonably necessary to prevent fraud and abuse, including placing restrictions on the amount of content or other services that can be accessed from the Service at any one time.

F. GENERAL TERMS OF USE

1. Modification of Software

Odiyo reserves the right to modify equipment and software requirements as is necessary for it to continue or improve the provision of Services through the Applications.

2. Compliance

You acknowledge that compliance with these Terms is designed to minimise the risk of unauthorised use of the Applications and harm to you, Odiyo or others, and therefore you are required to strictly adhere to these Terms. To the fullest extent permitted by law, you will be liable for any liability, loss, costs or damages to Odiyo or any third party as a result of your failure to adhere to these Terms.

3. Data Protection & Privacy

Odiyo will comply with all of its obligations under applicable data protection law with regard to relevant data in its possession relating to you. Data collected by us as part of the Services will be treated in accordance with our Privacy Notice. These documents set out how we use and protect the information you provide to us. We recommend that you read these documents carefully.

4. No Warranties

You expressly acknowledge that (a) your use of the Services, the Applications and any content therein is at your sole risk and (b) the Services, the Applications and all content are provided “AS IS” and “AS AVAILABLE” with no warranties of any kind.

Odiyo does not make any warranties, claims or representations to you or to any third party, whether express, implied or statutory, regarding the Services, Applications, content, including, without limitation, warranties or conditions of quality, performance, suitability, durability, title, non-infringement, merchantability, completeness of fitness for use for a particular purpose.

All such warranties are hereby expressly excluded and disclaimed and you hereby waive and release Odiyo from all such warranties of any nature. Access to and use of the Applications is at your own risk and Odiyo does not represent or warrant that the use of the Applications or any materials downloaded from it will not cause damage to property, including but not limited to loss of data or computer virus infection.

Without limiting the foregoing, Odiyo makes no warranty or representation that the Services, Applications or content will always be available, accessible, uninterrupted, timely, secure, accurate, complete, error free, free of viruses or other harmful components, or that any defects will be corrected. Odiyo may choose not to provide Services to countries at its sole discretion. We do not authorize anyone, including but not limited to Odiyo agents and employees, to make any warranties on our behalf and you should not rely on any such statements. Because some jurisdictions do not permit the exclusion of certain warranties, these exclusions may not apply to you.

5. Termination of Service

Odiyo may immediately suspend, cancel, modify or restrict the Services or your use of the Services, all without advance notice or liability, if:

– you violate this Agreement
– Odiyo has provided notice to you
– immediately upon breach by you of these Terms or where Odiyo reasonably believes you are in breach of these Terms
– Odiyo needs to perform maintenance on or upgrade the Services or Application, or the underlying infrastructure that enables you to use the Services or Application (you will not be entitled to claim damages for any such suspension or limitation of use)
– there is a determination by any governmental authority that the provision of any of the Services is contrary to any law, rule or regulation

Odiyo reserves the right, acting reasonably, to refuse to process or cancel any transactions following termination of these Terms or suspension or withdrawal of the Services. Odiyo is not responsible for any loss you may incur as a result of any transaction not being processed as part of the Services after termination of your account or after any suspension or withdrawal of the Services.

6. Third Party Services and Information

Odiyo will not check the accuracy or completeness of the information or the suitability or quality of the products and services offered by third parties. You must review all relevant terms of use of the relevant service before entering into a transaction in relation to the Service.

7. Security, Maintenance and Availability

You agree, acknowledge and accept that electronic communications, the internet, telephone lines or SMS-based telecommunications media may not be secure, and communications via such media may be intercepted by unauthorized persons or delivered incorrectly. As a consequence, we cannot guarantee the privacy or confidentiality of communications via such media although we will put in place appropriate security measures to protect these methods of communications. You acknowledge and agree that these events may occur and that Odiyo bears no liability when such events occur.

8. Indemnification

You agree to indemnify and hold Odiyo, its suppliers, vendors, and their respective subsidiaries, affiliates, officers, directors, agents, partners, employees, and consultants, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Service, your connection to the Service, your violation of these Terms or any law, or your violation of any rights of a third party.

9. Limited Liability

To the maximum extent permitted under applicable law, in no event will Odiyo be liable to you or any third-party for any incidental, special, indirect, consequential, exemplary, or punitive damages whatsoever including, but not limited to, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to the services and the content therein, related products and services, user content, third-party services and/or third-party materials, however caused, regardless of the theory of liability (contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory) and even if Odiyo has been advised of the possibility of such damages.

This does not limit in any way our liability for death or personal injury caused by our negligence or for any other matter which it would be illegal for us to exclude our liability.

Odiyo bears no responsibility for use of the applications and/or services in connection with any unauthorised, illegal, fraudulent, offensive, violent, immoral or indecent activity.

IN NO EVENT WILL ODIYO’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE TOTAL FEE PAID FOR THE AUDIOBOOK OR USE OF THE SERVICE OR FIFTY UNITED STATES DOLLARS ($50.00), WHICHEVER IS LESS.

Where fault lies solely with Odiyo. No right of indemnity exists for you against Odiyo. Furthermore, Odiyo will incur no independent or third party or vicarious liability in relation to the failure by you to adhere to the terms and conditions contained and referenced herein or on other related and linked independently operated websites by third parties.

10. Severability

If, at any time, any provision of this agreement (or any part of a provision of this agreement) is or becomes illegal, invalid or unenforceable, that shall not affect or impair the legality, validity or enforceability of the remainder of this agreement (including the remainder of a provision where only part thereof is or has become illegal, invalid or unenforceable).

11. Waiver

Any waiver of a breach or default of any of the provisions of this agreement shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on our part to exercise or avail of any right, power or privilege operate as a waiver of any breach or default by you.

12. Governing Law

This Agreement is governed by and will be construed in accordance with the laws of Jamaica, and the courts of Jamaica shall have exclusive jurisdiction to resolve any disputes in connection with them.

13. Notices

Save where expressly provided, any notice required to be given by us to you in connection with the subject matter of this agreement may be given by email or via the Applications.

14. Contact Information

If you have any questions about this agreement or any complaints or require any assistance with the Applications or the Services you have purchased, we are always here to help. Kindly contact us through the contact details listed on the App.