Terms and Conditions

Effective Date: February 1, 2015

Please read these Terms of Use ("Agreement" or "Terms of Use") carefully before using the services offered by EARZ.

This agreement sets forth the legally binding terms and conditions for your use of the Website earz.com (the "Site") and the service owned and operated by EARZ (collectively with the Site, the "Service"). By using the Site or Service in any manner, including but not limited to visiting or browsing the Site, you agree to be bound by this agreement.

This agreement applies to all users of the Site and Service, including members who have signed up and guest users of the site.

Acceptance of Terms

The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein (the “Terms of Use”), which term also incorporates the Privacy Policy available here , the Copyright Policy available at beta.earz.com/copyright and all other operating rules, policies and procedures that may be published from time to time on the Site by EARZ, each of which is incorporated by reference and each of which may be updated by EARZ from time to time without notice to you. In addition, some services offered through the Service may be subject to additional terms and conditions promulgated by EARZ from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Use by this reference.

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.

Modification of Terms of Use

EARZ reserves the right, at its sole discretion, to modify or replace any of the Terms of Use, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you an email. EARZ may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Use periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Use constitutes acceptance of those changes.

Rules and Conduct

As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Use or contrary to any applicable law. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Use, the term “Content” includes, without limitation, any User Submissions, videos, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by EARZ or its partners on or through the Service.

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:

1. 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;
2. interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
3. 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);
4. run Maillist, Listserv, any form of auto-responder or “spam” on the Service; or
5. use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site.

You shall not (directly or indirectly):

1. 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,
2. modify, translate, or otherwise create derivative works of any part of the Service, or
3. 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:

1. remove, edit or modify any Content in its sole discretion, including without limitation any User Submissions, from the Site or Service at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if EARZ is concerned that you may have violated the Terms of Use), or for no reason at all and
2. 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

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 Vendor’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.

You may register with the EARZ as a User (Patron) and create a User account (“User Account”), which will allow you to access certain features of the Service that are only available through User Accounts, such as the downloading and sharing of music. Your music purchase history and any information you provide for your profile page will be available to other Users of the Service by default, subject to our Privacy Policy.

Registration

You may browse the Site and view Content without registering/joining, but as a condition to using certain aspects of the Service, you may be required to register with EARZ and select a password and screen name (“User ID”). You shall provide EARZ with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the Terms of Use, which may result in immediate termination of your EARZ account. You shall not

1. select or use as a User ID or domain a name of another person with the intent to impersonate that person;
2. use as a User ID or domain a name subject to any rights of a person other than you without appropriate authorization; or
3. 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 Payments

You may make purchases from a Vendor through the Site, including without limitation purchases of digital downloads. You may also choose to make voluntary contributions to a Vendor through the Site. Each such purchase or contribution is a “Transaction”.

All enquiries regarding Transactions will be directed to the relevant Vendor. EARZ is not responsible for refunds for Transactions.

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.

Pay-or-Discard License Provisions

A User may download content from the EARZ Site and enjoy the benefits of a Trial Content License for a period of 7 days without making payment for a Content Licence. Once the trial period has ended the User must either pay the advertised price for the Content or discard any playable versions of the Content. Playable versions shall not include any archived or backed up copies not easily accessible to the User. Unless you have acquired a permanent Content License you may not unpack or retrieve archived copies of the Content once the trial period is over.

Content License

In accordance with the EARZ Pay-or-Discard License and on behalf of Vendors who submit content for distribution by the EARZ Site, a Content License grants the User holding the License a worldwide, non-exclusive, not-for-sublicense 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 the Vendor, 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.

For downloaded content that has been purchased the Content License is in perpetuity.

For downloaded content that has NOT been purchased, the Content License expires after a period of seven (7) days (Trial Period) and is referred to as a Trial Content Licence. Recipients of a Trial Content License must delete playable copies of the Content prior to the end of the Trial Period unless they purchase a perpetual Content License.

Users of the Site are automatically granted a Trial Content License when they download Content from EARZ.

Virtual Peer-to-Peer Content Sharing

Users are free to share EARZ generated links to EARZ Content (Share Links) regardless whether they have a Content License for the Content.

Share links may be published on social networks, sent by email or any legal method of sharing HTML links.

Content items should not be directly shared with 3rd parties. Only Share Links for the Content may be shared.

Intellectual Property Rights

  • remain with content owners
  • Users cannot modify, sell or distribute (outside of the pay and share provisions) and pay) any works accessed through the EARZ platform
  • etc

Incentives

A conditional incentive will be granted to Users for Content purchases that result from a User publishing Share Links. A User who publishes a Share Link is referred to as a Sponsor. There is no formal relationship between a Sponsor and a User who purchases Content (Purchaser) from a Sponsor’s Share Link. The relationship is informal. Sponsors most likely wont know Purchasers who use their published Share Links to acquire Content.

The incentive will be determined by how many generations of sharing occur between the Sponsor and the purchaser (Purchaser). The Sponsor may be up to 10 generations deep.

For example when a particular Purchaser pays for a Content item:

1st Generation Sponsor

This is the User that published the Share Link the Purchaser in question downloaded from.

2nd Generation Sponsor

This is the User who published the Share Link used by the 1st Generation Sponsor to acquire the Content.

and so on...

10th Generation Sponsors

This is the User who published the Share Link used by the 9th Generation Sponsor to acquire the Content.

The connection between each of the Sponsors and the Purchasers is called the Informal Distribution Chain (IDC).

Each of the 10 Sponsors in a given IDC will qualify for an incentive based on their position in the IDC provided they have been granted or acquired a permanent Content Licence for the Content item belonging to the Transaction in the same calendar month or earlier than the calendar month of the Transaction.

Incentives may take the form of cash or credits for Content depending on the location of the User and at the sole discretion of EARZ. Different incentive schemes will be published by EARZ from time to time.

Incentives due to a User may accrue with EARZ until a User elects to redeem their incentive. In the case of cash incentives that accrue, EARZ may elect to charge transaction and handling fees for amounts being redeemed below a certain threshold as published by EARZ from time to time.

Published cash incentives will be calculated as a percentage of revenue from a Transaction that is net of 3rd party transaction fees and any taxes that apply to the transaction (which may vary from country to country).

Vendor Rewards

Vendors may elect to provide rewards to Users who share forward or purchase their Content. You agree that EARZ shall not be held responsible for any promise of a reward made by a Vendor.

Termination

EARZ may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your User account. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees paid hereunder are non-refundable. All provisions of the Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Warranty Disclaimer

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.

Indemnification

You shall defend, indemnify, and hold harmless EARZ and its affiliates, authorized sublicensees and distributors, and each of their employees, contractors, directors, suppliers and representatives, from any and all liabilities, claims, and expenses, including reasonable attorneys’ fees and court costs, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content or otherwise from your User Submissions, violation of the Terms of Use, or infringement by you, or any third party using the your account, of any intellectual property or other right of any person or entity, and for breach of any of your representations and warranties in these Terms of Use. For the avoidance of doubt, you hereby agree to defend, indemnify, and hold harmless EARZ from any and all claims by a third party owning, controlling or claiming any right in or to any Sound Recording or Musical Work in your Music, including claims for performance royalties, mechanical royalties, and use or re-use fees. EARZ reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with EARZ in asserting any available defenses at your sole expense.

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 the 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 favour 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 Users 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.

International/Non-California Use

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.

Dispute Resolution

A printed version of the Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and EARZ agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

The Terms of Use shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the xxx District of California. Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Use, including without limitation, this section.

Integration and Severability

The Terms of Use are the entire agreement between you and EARZ with respect to the Service and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and EARZ with respect to the Site. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Use will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

Miscellaneous

EARZ shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond EARZ’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). The Terms of Use are personal to you, and are not assignable, transferable or sub-licensable by you except with EARZ’s prior written consent. EARZ may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Use and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Use, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Terms of Use will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. The captions and headings in this Agreement are intended only for convenience, and will in no event be construed to define, limit or describe the scope or intent of this Agreement, or of any provision of this Agreement, nor in any way affect the interpretation of this Agreement.

Contact and Feedback

You may contact EARZ at the following address: support@earz.com

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