Terms and Conditions
Effective Date: 15 June 2013
This agreement applies to all users of the Site and Service, including specifically:
• “Users” – i.e. Patrons (who are the signed up “member’s/user’s) as well as non-signed up visitors and users of the site;
• “Vendors” – i.e. the Artists, Musicians, Bands and/or their legal representatives (e.g. Managers, Distributors).
Acceptance of Terms
The Service is available only to individuals who are at least 13 years old. You represent and warrant that if you are an individual, you are of legal age to form a binding contract, and that all registration information you submit is accurate and truthful. EARZ may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
Rules and Conduct
By way of example, and not as a limitation, you shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any content on or through the Service, including without limitation any User Submission, that:
• infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
• you know is false, misleading, untruthful or inaccurate;
• is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane;
• constitutes unauthorized or unsolicited advertising, junk or bulk e-mail ("spamming");
• involves commercial activities and/or sales without EARZ's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes;
• exploits people in a sexual or violent manner;
• contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of EARZ or any third party; or
• impersonates any person or entity, including any employee or representative of EARZ.
Additionally, you shall not:
• take any action that imposes or may impose (as determined by EARZ in its sole discretion) an unreasonable or disproportionately large load on EARZ’s (or its third party providers’) infrastructure;
• interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
• bypass any measures EARZ may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
• run Maillist, Listserv, any form of auto-responder or “spam” on the Service; or
• use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.
You shall not (directly or indirectly):
• decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction,
• modify, translate, or otherwise create derivative works of any part of the Service, or
• copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
EARZ does not guarantee that any Content or User Submissions (as defined below) will be made available on the Site or through the Service. EARZ has no obligation to monitor the Site, Service, Content, or User Submissions. However, EARZ reserves the right to:
• to remove or block any User Submissions from the Service.
EARZ reserves the right to investigate and take appropriate legal action against anyone who, in EARZ's sole discretion, violates this provision, including, without limitation, terminating your account and/or reporting such activity or Content to law enforcement authorities.
Personal Information – Users
As a condition to using certain features of the Service (including, without limitation, all download features) you may be required to provide certain personal information to relevant Vendors, such as your e-mail address, country of residence and zip/postal code ("User Information"), in order to join the relevant V's mailing list. As a condition to each such Vendor's right to receive such User Information, EARZ requires each Vendor to agree to the terms set forth in the next section of this Agreement. However, you acknowledge that EARZ has no control over the use of the User Information by the Vendors, and you further acknowledge and agree that EARZ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the Vendors' use of such User Information.
User Personal Information – Vendors (N/A?)
In connection with certain features of the Service, including by requiring that Users provide you with their e-mail addresses and other personal information in order to access the free download option, Vendors may collect certain types of User Information. As a condition to receiving such User Information, Vendors acknowledge and agree that they will not disclose, rent, or sell any User Information to any third party, and will use the User Information only in connection with the Vendor’s mailing list, in order to provide Users with general information and news about the Vendor, such as upcoming shows and new music. You further agree that any e-mail sent to the Vendor mailing list will include a mechanism by which the recipient can unsubscribe from the mailing list, along with clear instructions on how to do so (i.e. a functioning "opt-out" mechanism).
• select or use as a User ID or domain a name of another person with the intent to impersonate that person;
• use as a User ID or domain a name subject to any rights of a person other than you without appropriate authorization; or
• use as a User ID or domain a name that is otherwise offensive, vulgar or obscene.
EARZ reserves the right to refuse registration of, or cancel a User ID and domain in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your EARZ password. You shall never use another User’s account without such other User’s express permission. You will immediately notify EARZ in writing of any unauthorized use of your account, or other account related security breach of which you are aware.
Fees and Payment – Users
You may purchase products and/or services from a Vendor through the Site, including without limitation purchases of digital downloads (each such purchase is a “Transaction”). All inquiries regarding Transactions will be directed to the relevant Vendor. EARZ is not responsible for refunds for Transactions.
You warrant that if you enter into a Transaction, you shall be able to make full and immediate payment for the requested products or services.
Fees and Payment – Vendors
You will set the prices for your products that are charged through Transactions (the “Prices”) through the Site, and you may change the Prices at your sole discretion. Notwithstanding the preceding sentence, EARZ may redistribute previously purchased copies of your products to Users who have, in EARZ’s sole determination, received a corrupted copy of your product, an incorrect file format version of your product, an incomplete copy of your product, or suffered a loss of your product through hard drive failure, damage, theft or destruction, on a no-fee basis to the User (i.e., the User is not charged a new fee for the redistribution). Consequently, no additional payments shall be made to you for such redistributions.
EARZ shall be entitled to a share of the revenue you receive from Transactions (the “Revenue Share”), which shall be calculated on your gross revenue from Transactions in accordance with the rate schedule set forth at www.EARZ.com/pricing. You shall be solely responsible and liable for, and EARZ shall have no responsibility or liability for, any bad debts (such as credit card returns or fraud), PayPal fees (except for fees charged on EARZ’s PayPal account), credit card transaction fees, disputed payments and refunds.
Payments received from Users for Transactions shall be directed to you, provided that if there is an outstanding Revenue Share owed to EARZ, such payments may be directed to EARZ in accordance with EARZ’s standard policies.
EARZ retains the right, but does not have the obligation, to immediately halt the offering or sale of any goods or services, prevent or restrict access to the Site or the Services or take any other action in case of technical problems, objectionable material, inaccurate listings, or actions otherwise prohibited by the procedures and guidelines contained on the Site, or for any other reason in the sole and absolute discretion of EARZ, and to correct any inaccurate listing or technical problems on the Site.
In addition to the fees set forth above, EARZ reserves the right to require payment of fees for certain additional features of the Service. Should you elect to subscribe to such features, you shall pay all applicable fees, as described on the Site in connection with such features. EARZ reserves the right to change its price list and to institute new charges at any time, upon ten (10) days prior notice to you, which may be sent by email or posted on the Site. Use of the Service by you following such notification constitutes your acceptance of any new or increased charges.
Third Party Sites
The Service may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under EARZ's control, and you acknowledge that EARZ is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by EARZ or any association with its operators. You further acknowledge and agree that EARZ shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
Content and License
You agree that the Service contains Content specifically provided by EARZ or its partners and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Service.
EARZ grants each User of the Site and/or Service a worldwide, non-exclusive, non-sublicensable and non-transferable license to use, modify and reproduce the Content, solely for personal, non-commercial use. Use, reproduction, modification, distribution or storage of any Content for other than personal, non-commercial use is expressly prohibited without prior written permission from EARZ, or from the copyright holder identified in such Content's copyright notice. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third party right.
Intellectual Property Rights – Vendors
The Service provides Vendors with the ability to upload the Vendor’s sound recordings (“Sound Recordings”) and the musical works (“Musical Works”) embodied therein (collectively, the Vendor’s “Music”) to the Site. EARZ will not have any ownership rights in any elements of a Vendor’s Music and other digital content uploaded onto EARZ, however, EARZ needs the following license to perform the Service.
Each Vendor uploading Music to the Service grants EARZ and its authorized sublicensees and distributors, if any, the worldwide, non-exclusive, royalty-free, right and license to:
• reproduce, distribute, publicly perform, publicly display, create derivate works of, communicate to the public and otherwise exploit (collectively, “Exploit”)
• the Vendor’s Music and perform the Service on the Vendor’s behalf (e.g., reproduce, transcode, copy and store the Vendor’s Music on computer servers owned and/or operated by or on behalf of EARZ or its authorized sublicensees and distributors, and publicly perform, transmit, stream, distribute, and playback the Vendor’s Music) using any technologies or methodologies now known or hereafter developed, and
• Exploit all associated copyrightable works or metadata, including, without limitation, song lyrics and musical notations, album cover artwork, photographs, graphics, and descriptive text (“Artworks”) in connection with the Service);
• allow Users of the Service to receive public performances and public displays of the Vendor’s Music and Artworks and to reproduce the Vendor’s Music and Artwork on any and all devices owned or controlled by the User for non-commercial purposes and receive performances and displays of same; and
• reproduce, use, and publish, and to permit others to reproduce, use and publish, the name(s), trademarks, likenesses, and personal and biographical materials of the Vendor, in connection with the provision of the Service.
To enable EARZ to Exploit your Music pursuant to the above provisions, you hereby grant to EARZ the worldwide, non-exclusive, royalty-free, sublicensable, and transferable right to use, distribute, reproduce, copy, and display your trademarks, service marks, slogans, logos or similar proprietary rights (collectively, the “Trademarks”) solely in connection with the Service or in the marketing, promotion or advertising of the service, including in all forms of marketing, promotion, and advertising materials now known or hereafter created.
By uploading any Music or other Content to the Site:
• you represent and warrant, and can demonstrate to EARZ’s full satisfaction upon request, that
• you own or otherwise control all rights to
• your Sound Recordings,
• the Musical Works embodied in your Sound Recordings (or that such Musical Works are in the public domain or have otherwise been directly licensed to the Vendor in writing with a grant of rights sufficient to permit the Vendor to enter into this Agreement and to grant all of the rights with respect to the Vendor’s Music as set forth in this Agreement (hereinafter “Direct Licensed”)) and
• the Artworks (or that such Artworks are in the public domain or Direct Licensed);
• you have full authority to act on behalf of any and all owners of any right, title or interest in and to any Sound Recordings you upload to the Service and the Musical Works embodied therein and to the Artworks,
• you are authorized to grant all of the aforementioned rights to the Music and/or Artworks to EARZ and all Users of the Service.
• you represent and warrant that the use or other exploitation of your Sound Recordings and the Musical Works embodied therein and/or Artworks by EARZ and its authorized sublicensees and distributors and/or by Users of the Site as contemplated by this Agreement will not infringe or violate the rights of any third party, including, without limitation, any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights;
• you represent and warrant that, to the extent you are the songwriter of any or all of the Musical Works embodied in your Sound Recordings, whether in whole or in part (e.g., as a co-writer), you have the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any agreement you may have entered into with any performing rights organization (“PRO”), whether based in the United States (e.g., ASCAP, BMI or SESAC) or elsewhere, or any music publisher, and that you are solely responsible for taking all steps necessary to inform such PRO or music publisher of your grant of a royalty free license to EARZ for the uses set forth herein for the Hosting, including public performances and communications to the public, of your Musical Works, and that no fees or payments of any kind whatsoever shall be due to any PRO or music publisher for the Hosting of your Musical Works;
• you represent and warrant that no fees of any kind shall be due any third party, including, but not limited to, any union, guild, non-featured vocalist or musician, engineer or producer, for the use or re-use of your Sound Recordings as authorized under this Agreement.
If any agreement you have entered into with any third party, including, but not limited to a PRO, music publisher, union or guild, whether by law or contract, prohibits you from granting EARZ the right and license set forth in this Agreement and making the representations and warranties set forth in the four paragraphs immediately above, then you are prohibited from uploading your music to the Service and shall be responsible for indemnifying and holding EARZ harmless from and against any and all claims arising from the exploitation of your music on the Service, including all court costs and legal fees.
Intellectual Property Rights - Users
The Service provides Users with the ability to add, create, upload, submit, distribute or post (“Submitting” or “Submission”) content, videos, audio clips, written forum comments, data, text, photographs, software, scripts, graphics, or other information to the Site (collectively, the “User Submissions”). By Submitting User Submissions on the Site or otherwise through the Service, you:
• acknowledge that by Submitting any User Submission to the Site, you are publishing that User Submission, and that you may be identified publicly by your User ID in association with any such User Submission;
• by Submitting any User Submissions through the Site or the Service, you hereby do and shall grant EARZ a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, reproduce, distribute, prepare derivative works of, publicly display, publicly perform, and otherwise fully exploit the User Submissions in connection with the Site, the Service and EARZ’s (and its successors and assigns’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites), whether now known or hereafter developed. You also hereby do and shall grant each User of the Site and/or the Service a non-exclusive license to access your User Submissions through the Site and the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions solely for personal, non-commercial use. For clarity, the foregoing license grant to EARZ does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing;
• represent and warrant, and can demonstrate to EARZ’s full satisfaction upon request that you
• own or otherwise control all rights to all content in your User Submissions, or that the content in such User Submissions is in the public domain or Direct Licensed;
• you are authorized to grant all of the aforementioned rights to the User Submissions to EARZ and all Users of the Service;
• you agree to pay all royalties and other amounts owed to any person or entity, including any PROs, due to your Submission of any User Submissions to the Service;
• that the use or other exploitation of such User Submissions by EARZ and use or other exploitation by Users of the Site and Service as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights; and
• understand that EARZ shall have the right to delete, edit, modify, reformat, excerpt, or translate any materials, content or information submitted by you; and that all information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such content originated and that EARZ will not be liable for any errors or omissions in any content; and that EARZ cannot guarantee the identity of any other Users with whom you may interact in the course of using the Service.
EARZ does not endorse and has no control over any User Submission. EARZ cannot guarantee the authenticity of any data which Users may provide about themselves. You acknowledge that all Content accessed by you in using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
EARZ has no special relationship with or fiduciary duty to you. You acknowledge that EARZ has no control over, and no duty to take any action regarding: which Users gains access to the Site; what Content you access via the Site; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release EARZ from all liability for you having acquired or not acquired Content through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. EARZ makes no representations concerning any Content contained in or accessed through the Site, and EARZ will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site or the Service.
The Service is provided "as is" and "as available” and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. EARZ, and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the service will meet your requirements. Your use of the service is solely at your own risk.
Some USA States do not allow limitations on how long an implied warranty lasts, so the above limitations may not apply to you.
Electronic Communications Privacy Act Notice (18USC 2701-2711): EARZ makes no guaranty of confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. EARZ will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on EARZ’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.
Limitation of Liability
In no event shall EARZ, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Service:
• for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, substitute goods or services (however arising),
• for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or
• for any direct damages in excess of (in the aggregate) one-hundred U.S. dollars ($100.00). Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
Because EARZ is not content owner in any Transaction, if a dispute arises between one or more participants in a Transaction, you release EARZ (and its affiliates, agents and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 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 favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You, being aware of said code section, hereby expressly waive any rights you may have thereunder, as well as under any other statutes or common law principles of similar effect. You acknowledge and agree that this waiver is an essential and material term of this Agreement, and that without such waiver, this Agreement would not have been entered into by EARZ.
Because EARZ is not the buyer or seller in any actual Transaction between Vendors and fans and is not the agent of either for any purpose, EARZ does not have the duty to resolve and will not be involved in resolving any disputes between participants related to or arising out of any such Transaction.
EARZ makes no representation that the Content is appropriate or available for use in locations outside of California, and accessing the Service is prohibited from territories where such Content is illegal. If you access the Service from other locations, you do so at your own initiative and are responsible for compliance with local laws.
Integration and Severability
Contact and feedback
You may contact EARZ at the following address: email@example.com