Artist Terms Of Service
As of February 1, 2014
Earbits, Inc. (“Earbits”, “we”, “us” or “our”) welcomes you to its music listening services, available through its online website (collectively, including all content and functionality available through the www.Earbits.com domain name, the “Earbits Website” or “Website”), and its mobile applications, browser extensions and other forms of delivery.
Earbits is a 100% commercial-free online service that streams music, both radio-style and on-demand, from emerging and high-quality artists with no listener subscription fees. Earbits provides users with a seamless music discovery and listening experience without the need for interruptions, advertisements or other distractions. (the “Earbits Services”) Earbits also provides a proprietary platform for emerging musical artists to promote and buy airplay of their original music (the “Earbits Artist Services”).
If you are a musical artist or an authorized manager, record label, music publisher, promotional company or other third party agent of a musical artist using Earbits to promote and buy airplay for original music, these Artist Terms of Service apply to you as a user of the Earbits’ Artist Services.
If you are a music listener using Earbits to discover
and listen to music with no listener subscription fees, a separate General
Terms of Service applies to you as a user of Earbits’ streaming music
service. The General Terms of Service can be found athttp://www.earbits.com/
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
WARNING: THE EARBITS ARTIST SERVICES ARE FOR ARTISTS AND OTHERS WHO HAVE RIGHTS TO DISTRIBUTE AND UPLOAD THEIR MUSIC AND OTHER CONTENT TO THE EARBITS ARTIST SERVICES FOR PROMOTIONAL PURPOSES. UPLOADING MUSIC AND OTHER CONTENT YOU DID NOT CREATE OR DO NOT HAVE RIGHTS TO REDISTRIBUTE IS A VIOLATION OF THIS AGREEMENT AND MAY VIOLATE COPYRIGHT LAW. IF YOU ARE NOT THE ARTIST WHO CREATED THE MUSIC OR OTHER CONTENT, OR THAT ARTIST’S AUTHORIZED AGENT (AS DEFINED BELOW), DO NOT UPLOAD SUCH MUSIC AND OTHER CONTENT. IF YOU VIOLATE THIS RULE, YOU MAY BE LIABLE FOR ROYALTIES, FEES, MONETARY DAMAGES AND/OR OTHER FINES AND PENALTIES AND YOUR EARBITS ARTIST ACCOUNT MAY BE SUSPENDED AND/OR DELETED.
1. Artist Use; Proprietary Rights; Representations; Agreement; License Grant; Submitted Content.
1.1 Artist Use. The Earbits Artist Services are for the direct use of musical artists who own the copyright in their Content (as defined below) being uploaded as part of the Earbits Artist Services (“Artists”) or the authorized manager, record label, music publisher, promotional company or other third party agent of Artists having reproduction, distribution, performance or promotional rights in the Content and directly authorized by such Artists (an “Authorized Agent” of the Artist) (“Artist” and “Authorized Agent” of an Artist, are also referred to herein as “you” or “your”) to upload, post, transmit, publish, display or otherwise submit (hereinafter, “submit”) text, files, graphics, images, photographs, logos, video recordings, sound recordings, musical compositions, applications, documentation, or any other materials (collectively, “Content”) on behalf of such Artists to Earbits and the Earbits Artist Services. To access the Earbits Artist Services, you must create an Earbits artist account (“Earbits Artist Account”) by completing the registration process.
1.2 Artist Proprietary Rights. Earbits does not claim any ownership rights in the Content that is submitted by Artists and their Authorized Agents to Earbits in connection with the Earbits Artist Services. After submitting your Content to Earbits through the registration process in connection with the Earbits Artist Services, you continue to retain any such rights that you may have had in such Content, subject to the license granted in Section 1.5.
1.3 Artist Representations. In registering for an Earbits Artist Account each Artist and Authorized Agent of an Artist represents and warrants to Earbits that:
• you are of legal age to form a binding contract with Earbits and that you are an Artist or Authorized Agent of an Artist who is authorized to register and submit Content to the Earbits Artist Services;
• all information that you provide to Earbits is true, complete and accurate;
• if you are an Artist: (1) you own all right, title and interest, and/or you have secured all necessary rights, permissions and releases and made all required payments, in connection with the creation of all Content that you submit to Earbits in connection with the Earbits Artist Services, including but not limited to in any music samples from other content owners, musical composition rights from writers, co-writers and/or composers of the underlying musical compositions, name and likeness rights from any persons appearing in any video or photographic images, and rights to any other components of intellectual property that is part of or incorporated within the Content you submit, (2) you will secure any rights and make any payments in connection with the use of the musical compositions in the Content as part of the Earbits Services, including but not limited to the reproduction, performance and distribution of the Content through the Earbits Services, (3) such Content does not violate the intellectual property rights, privacy rights, publicity rights, contract rights or any other rights of any third party, and (4) you have the right to grant the license set forth in Section 1.5 herein;
• if you are the Authorized Agent for an Artist: (1) you have been granted all rights, authorizations and approvals from the owner(s) of the Content to submit and distribute the Content as an Authorized Agent as part of the Earbits Artist Services, (2) all necessary rights, permissions and releases have been secured and all required payments have been made, in connection with the creation of all Content that you submit to Earbits in connection with the Earbits Artist Services, including but not limited to in any music samples from other content owners, musical composition rights from writers, co-writers and/or composers of the underlying musical compositions, name and likeness rights from any persons appearing in any video or photographic images, and rights to any
other components of intellectual property that is part of or incorporated within the Content, (3) you will secure any rights and make any payments in connection with the use of the musical compositions in the Content as part of the Earbits Services, including but not limited to the reproduction, performance and distribution of the Content through the Earbits Services; (4) such Content does not violate the intellectual property rights, privacy rights, publicity rights, contract rights or any other rights of any third party, and (5) you have the right and authority to grant the license set forth in Section 1.5 herein, and
• you are the authorized signatory of the credit card provided by you to Earbits to pay the Fees (as defined below).
1.4 Artist Agreement. You, as an Artist or Authorized Agent, expressly agree:
• that Earbits has the right to suspend and/or terminate your account and refuse any and all current or further use of the Earbits Artist Services if Earbits determines, in its sole discretion, that any information you provided is untrue, inaccurate, not current and/or incomplete;
• to protect your username and password at all times;
• to notify Earbits immediately of any unauthorized use of your account or any other need to deactivate your username and/or password due to security concerns;
• that Earbits shall not be responsible for unauthorized access to or alteration of your data; and
• that any Content you submit or have submitted to Earbits in physical form (e.g. compact discs, DVDs, photographs, etc.) shall not be returned to you and shall become the exclusive property of Earbits, unless otherwise agreed to in writing by Earbits.
Your username and password are personal to you and under no circumstances may you allow any others to use your username and/or password. We are not liable for any harm caused or related to the theft or misappropriation of your username and/or password, disclosure or your username and/or password, or your authorization of anyone else to use your username and/or password. From time to time, Earbits may find it necessary to access your account. For instance, Earbits may access your account for support, maintenance or security-related reasons. You acknowledge and consent to such access. Furthermore, recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside and to comply with any other local laws affecting the transmission or posting of content or affecting the privacy of persons.
1.5 Artist License Grant. By submitting Content to Earbits in connection with the Earbits Artist Services, you hereby grant to Earbits a non-exclusive, fully paid, royalty-free, worldwide license during the period your Content is submitted to the Earbits Artist Services to transmit, publicly perform, use, reproduce, edit (as required to facilitate the transmission or to create samples), display, distribute, promote, market and otherwise exploit (hereinafter, “exploit”) such Content solely on, through or in connection with the Earbits Artist Services and the Earbits Services or any sucessor service, including, without limitation, to any applications, widgets, website or mobile, desktop or other services which are linked with your Earbits Artist Account (collectively, “Linked Services).
This license shall apply with respect to any form, media, or technology now known or hereafter developed through which the Earbits Artist Services are made available.
You also grant to Earbits the non-exclusive, worldwide right to use your professional name as an Artist, and your likenesses posted on the Earbits artist page (“Artist Page”) (or such name or likeness as is provided with authorization by the Authorized Agent of the Artist), in connection with the advertising and promotion of your Content, the Earbits Artist Services and any Linked Services.
Further, when you submit any Content to Earbits in connection with the Earbits Artist Services, you authorize and direct Earbits (i) to make such copies thereof as Earbits deems necessary in order to facilitate the transmission and storage of such Content in the Earbits Artist Services, and (ii) to use such Content until it is removed from the Earbits Artist Services or deleted from your Artist Account.
You may remove your Content from the Earbits Artist Services or delete your Content from your Artist Account at any time. If you become aware that you no longer have the rights to grant some or all of the rights granted in this section with respect to some or all of the Content you uploaded, you agree to promptly secure such rights or to restrict or remove such Content from the Earbits Artist Services. If you choose to remove your Content, the license granted above will automatically expire solely with respect to such removed Content, however you acknowledge that Earbits may retain archived copies of your removed Content for legal or administrative reasons.
1.6 Submitted Content. Earbits is under no obligation to perform any submitted Content and reserves the right, in its sole discretion, to reject or remove any Content for any reason or no reason at all; and to edit, monitor or otherwise control Content and to remove Content, which Earbits, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of this Artist Terms Agreement or Earbits’ operating policies for users of the Earbits Services. Notwithstanding the foregoing, Earbits shall not edit submitted musical recordings except to create samples of such works for music listeners.
You warrant, represent and agree that you will not transmit or contribute any Content or otherwise use the Earbits Artist Services in a manner that:
• infringes the intellectual property or proprietary rights, publicity or privacy rights, contract rights or any other rights of any third party;
• violates any law, statute, ordinance or regulation;
• you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable;
• adversely affects or reflects negatively on Earbits’ goodwill, name or reputation or causes duress, distress or discomfort to Earbits or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Earbits Services, or from advertising, liking or becoming a supplier to use in connection with the Earbits Services;
• sends or results in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”;
• alters in any way any the music streamed through the Earbits Services;
• transmits, distributes or uploads programs or material that contains malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse,
spyware, or other potentially harmful programs or other material or information;
• reverse engineers or compromises any aspect of the Earbits Technology, or attempts to access data of any user of the Earbits Website;
• creates derivative works of the Earbits Technology;
• circumvents, disables or otherwise interferes with security-related features of the Earbits Services or its features that prevent or restrict use or copying of any content;
• interferes with the operation of the Earbits Artist Services;
• makes the Earbits Artist Services available over an unauthorized network where it could be used by others;
• intercepts or attempts to intercept email or other private communications not intended for you; and/or
• causes the Earbits Services to be used for unintended commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages.
Earbits reserves the right to take such action as it deems appropriate and/or to remove any Content from the Earbits Services at any time, 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 Earbits is concerned that you may have breached this Agreement).
2. Earbits License Grant; Proprietary Rights.
2.1 Earbits License Grant. Your access to the Earbits Artist Services is licensed and not sold. Subject to the terms of this Artist Terms Agreement and upon your registration for a Earbits Artist Account, Earbits hereby grants you a limited, revocable, personal, non-exclusive, non-transferable license enabling you to access and use the Earbits Artist Services. If you purchase any of the Earbits Artist Services, this license is contingent upon your payment of any applicable fees and your compliance with any other terms and conditions applicable to you as a user. Any violation by you of the license provisions contained in this Section 2.1 may result in the immediate termination of your right to use the Earbits Artist Services. Earbits reserves all right, title and interest not expressly granted under this license to the fullest extent possible under applicable laws. Any use of the Earbits Artist Services not specifically permitted under this Artist Terms Agreement is strictly prohibited. All Content that is made available on the Earbits Services to view and/or download in connection with the Earbits Artist Services is owned by either Earbits or Artists or their Authorized Agents as copyright owners and is licensed, not sold. You may not lend, lease, rent, sell, distribute or sublicense any aspect of the Earbits Artist Services without the prior written consent of Earbits.
2.2 Earbits Proprietary Rights. Except for the Content submitted by Artists and their Authorized Agents pursuant to the terms of the Artist Terms Agreement, and the limited licenses expressly granted herein, Earbits expressly reserves all right, title and interest in and to the Earbits Artist Services, any Earbits Content on the Earbits Services, and all processing, analytics, and other software and technology used by Earbits in the provision of the Earbits Artist Services (collectively, "Earbits Technology"), including, without limitation, any derivatives, improvements, enhancements or extensions of the Earbits Technology conceived, reduced to practice or otherwise developed on or on behalf of Earbits, all of
which are valuable assets of Earbits, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
All Earbits Content on the Earbits Services is the exclusive property of Earbits or the Artists or their Authorized Agents and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all Content on the Earbits Services is the exclusive property of Earbits and is also protected by U.S. and international copyright laws. The Content on the Earbits Services may be used as a resource. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance of the Content on the Earbits Services is strictly prohibited. Furthermore, you will not, nor will you allow or direct any third party (whether or not for your benefit), to reproduce, modify, create derivative works from, display, perform, publish, distribute, disseminate, broadcast, circulate or use any Content on the Earbits Services without the express prior written consent of Earbits. Any unauthorized or prohibited use of the Content on the Earbits Services may subject you to civil liability, criminal prosecution, or both, under applicable federal, state, and local laws.
3. Purchase of Airtime; Payment Terms; Account Cancellation; Waiver of Claims for Third Party Fraud.
3.1 Purchase of Airtime. Except as otherwise agreed to by Earbits,
all purchases of airtime are made by prepaid deposits by Artists and/or
Authorized Agents. In order to purchase airtime, you must first register
for an Earbits Artist Account and then submit your music to Earbits
for review and approval. There is no charge for registering for an Earbits
Artist Account. Upon approval by Earbits, Artists and/or Authorized
Agents can bid for the right to play music on the Earbits Website and
also make prepaid deposits for purchases of airtime. Earbits expressly
reserves the right to change the prices charged for airtime at any time,
upon notice to you. Earbits also reserves the right to offer airtime
bonuses to Artists and/or Authorized Agents for prepaid deposits, referrals
of other artists who use the Earbits Artist Services and other incentive
bonuses. Such airtime bonuses will be offered with specific terms and
conditions to any Artists and/or Authorized Agents at the sole discretion
of Earbits and may be discontinued at anytime. For complete terms and
conditions, please review Earbits’ Airtime Bid Policy at http://www.earbits.com/bid_
3.2 Payment Terms. Except as otherwise agreed to in writing by Earbits, you will not be charged by Earbits for more than the prepaid deposits you make for airtime purchases. In addition, you will not be charged fees against later deposits for airtime provided in advance and there are no recurring or any monthly fees. Any remaining and unused prepaid balance you may have is refundable upon request if after one hundred twenty (120) days, Earbits is unable to provide enough airtime to use up the prepaid balance. However, after eighteen (18) months of the date of an airtime purchase that has not been used up, you will be issued a credit for services, merchandise or other products instead of a refund.
3.3 Account Cancellation. The only accepted method for you to cancel your Earbits Artist Account is via the account settings available through your Earbits Artist Account. An email request to cancel your account is not considered cancellation unless confirmed in writing by email by Earbits. You can cancel your Earbits Artist Account at any time when you are logged into your Earbits Artist Account by going to your account preferences and using the cancellation link.
3.4 Waiver of Claims for Third Party Fraud. To the fullest extent permitted by law, you waive all claims relating to payments you make for the Earbits Artist Services (including without limitation any claim relating to payments made for suspected inactive listening sessions or suspected invalid clicks or impressions on your musical recordings) unless claimed within sixty (60) days after the payments were made. To the fullest extent permitted by law, refunds (if any) are at the sole discretion of Earbits and only in the form of airtime credit. Nothing in these terms may obligate Earbits to extend credit to any party.
4. Sales and Promotions.
4.1 Sales of Products and Services. Earbits will allow its users to purchase your music, merchandise, concert tickets and other products and services directly from the Earbits Services. Earbits will charge such purchasers of your products and services the price agreed to by you, depending on the preferences you select in your Artist Account. In addition, Earbits will sell other products and services either directly or through certain approved vendors and partners. Such approved vendors and partners will remit sales revenues to you according to their own payment policies.
4.2 Promotions. Earbits will run promotions on its Website to promote you, your Content and your other products and services. These promotions will include, without limitation, giveaways of prizes and concert tickets paid for by Earbits, as well as free downloads of your music, which may be delivered as an individual track, as part of a playlist, or together with other tracks. You authorize Earbits to run such promotions without cost to the user, within commercially reasonable limits, and hereby waive any and all claims against Earbits related to such promotions, including for royalties. You can opt out of any promotions through your Earbits Artist Account. If you do not have the rights necessary to authorize any such promotions, you acknowledge that it is your (and not Earbits’) responsibility to opt out of promotions.
6. Privacy Rights. Earbits is firmly committed to protecting
your privacy and the information that Earbits gathers. For Earbits’
complete policy on privacy, please visit and review Earbits’ Privacy
Policy at http://www.earbits.com/
7. Linking to Earbits; Use of Earbits Logo. Earbits offers a non-assignable, non-transferable and non-exclusive license to link to our Website, using Earbits logos, subject to the following provisions. Earbits logos may be placed on a website for the sole purpose of creating a link to Earbits and allowing users of your website to access the Earbits Artist Services on Earbits. Earbits logos may not be used for any other purpose, including, among other purposes, to suggest sponsorship by, or affiliation with, or endorsement by Earbits. Earbits logos may only be used in the exact size, shape, colors, design and configuration as found on such web page. Earbits logos may not be altered in any manner. Earbits logos must appear by themselves with reasonable spacing (at least the height of the logo) between each side of the applicable logo and other graphic or textual elements. Earbits logos may not be used to disparage Earbits, its products or services, or in a manner which, in Earbits’ reasonable judgment, may diminish or otherwise damage Earbits’ good will in Earbits’ logos. By using any such Earbits logo, you acknowledge that Earbits has exclusive rights to the logo, and that all good will generated through your use of the logo will inure to the benefit of Earbits. If you use Earbits logos, you must include appropriate attribution, for example: “Earbits® is a registered trademark of Earbits, Inc.” Earbits reserves the right to revoke this license or to alter its terms from time to time, for any or no reason, with or without notice. Earbits reserves the right to take action against any use that does not conform to these provisions.
8. Indemnification. You agree to indemnify, hold harmless and defend Earbits, at your expense, against any and all third party claims, demands, actions, damages (actual or consequential), proceedings, and suits of any kind or nature whatsoever brought against Earbits or any of its subsidiaries, officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees) incurred by Earbits or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of any term or condition of this Artist Terms Agreement, (ii) your use of the Earbits Artist Services, (iii) the Content submitted by you (including but not limited to the underlying sound recordings, musical compositions, and any other intellectual property incorporated within), or (iv) your unauthorized use of the Earbits Technology. In such a case, Earbits will provide you with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. Earbits reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.
9. Waiver and Release. YOU AGREE THAT NEITHER EARBITS, NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH YOUR USE OF THE EARBITS SERVICES, THE EARBITS ARTIST SERVICES, THE CONTENT, OR ANY EARBITS TECHNOLOGY. YOU SPECIFICALLY ACKNOWLEDGE THAT EARBITS SHALL NOT BE LIABLE FOR ARTIST SUBMISSIONS AND THIRD PARTY CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST EARBITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF EARBITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE EARBITS SERVICES, THE EARBITS ARTIST SERVICES, OR THE EARBITS TECHNOLOGY.
10.1 Disclaimer of Warranties. Earbits does not represent or warrant that (a) the Earbits Artist Services will be error-free or accessible at all times, (b) the Earbits Artist Services will be suitable for any particular purpose, (c) the Earbits Artist Services will not be subject to fraud or manipulation by third party users beyond the control of Earbits, (d) defects will be corrected, (e) the Earbits Artist Services or the server that makes it available, are free of viruses or other harmful component, or (f) the use or the results of the use of the Earbits Artist Services or the materials made available as part of the Earbits Artist Services will be correct, accurate, timely, or otherwise reliable. Earbits does not guarantee, and shall have no liability for, any Earbits Artist Services down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance, or (iv) relating to events beyond Earbits’ control such as, but not limited to, strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Earbits or your servers are located or co-located.
YOU USE THE EARBITS ARTIST SERVICES, EARBITS TECHNOLOGY AND OUR WEBSITE AT YOUR SOLE RISK. THE EARBITS ARTIST SERVICES, THE EARBITS TECHNOLOGY AND OUR WEBSITE ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY EARBITS, OR ANY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE EARBITS ARTIST SERVICES, TECHNOLOGY AND OUR WEBSITE, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. EARBITS DOES NOT WARRANT THAT THE EARBITS ARTIST SERVICES, WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE EARBITS ARTIST SERVICES WILL BE UNINTERRUPTED. EARBITS MAKES NO GUARANTEES, REPRESENTATIONS, OR WARRANTIES THAT USE OR RESULTS OF THE USE OF THE EARBITS ARTIST SERVICES, THE EARBITS TECHNOLOGY AND OUR WEBSITE WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR WITHOUT ERRORS. WITHOUT PRIOR NOTICE, EARBITS MAY MODIFY, SUSPEND, OR DISCONTINUE THE EARBITS ARTIST SERVICES (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER EARBITS ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE EARBITS ARTIST SERVICES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY. YOU ACKNOWLEDGE AND AGREE THAT YOUR SUBMISSION OF ANY CONTENT OR INFORMATION TO US IS AT YOUR SOLE RISK. YOU ACKNOWLEDGE AND AGREE THAT IF A THIRD PARTY ACCESSES YOUR CONTENT OR INFORMATION AND DISTRIBUTES IT OR OTHERWISE MAKES IT AVAILABLE TO OTHERS, EARBITS IS UNDER NO OBLIGATION TO DELETE SUCH CONTENT OR INFORMATION, OR ASK SUCH THIRD PARTY, OTHER WEBSITE USERS OR A LINKED SERVICE TO DELETE YOUR CONTENT OR INFORMATION, EVEN AFTER YOU REMOVE YOUR CONTENT OR INFORMATION FROM THE EARBITS ARTIST SERVICES OR WEBSITE. EARBITS DOES NOT ASSUME ANY LIABILITY TO YOU WITH REGARD TO ANY LOSS OR LIABILITY RELATING TO SUCH CONTENT OR INFORMATION IN ANY WAY.
ALL MATERIALS AND CONTENT DOWNLOADED, UPLOADED, PERFORMED, DISPLAYED AND/OR OBTAINED THROUGH THE USE OF THE EARBITS ARTIST SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR, AND HEREBY WAIVE ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE EARBITS ARTIST SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, EARBITS DISCLAIMS ALL GUARANTEES REGARDING THE QUALITY AND/OR NUMBER OF LISTENERS OF YOUR MUSIC AND YOU UNDERSTAND THAT THIRD PARTIES MAY GENERATE INACTIVE LISTENING SESSIONS AND/OR INVALID OR FALSE IMPRESSIONS OR CLICKS ON YOUR MUSIC FOR IMPROPER OR PROHIBITED PURPOSES, AND YOU ACCEPT THE RISK OF SUCH INACTIVE LISTENING SESSIONS AND IMPRESSIONS OR CLICKS ON YOUR MUSIC. YOUR EXCLUSIVE REMEDY, AND EARBITS’ EXCLUSIVE LIABILITY, FOR SUSPECTED INACTIVE LISTENING SESSIONS OR INVALID IMPRESSIONS OR CLICKS ON YOUR MUSIC IS FOR YOU TO MAKE A CLAIM FOR A REFUND IN THE FORM OF AIRTIME CREDIT WITHIN THE TIME PERIOD REQUIRED UNDER SECTION 3.4 ABOVE. ANY REFUNDS FOR SUSPECTED INACTIVE LISTENING SESSIONS OR INVALID IMPRESSIONS OR CLICKS ON YOUR MUSIC ARE WITHIN THE SOLE DISCRETION OF EARBITS.
11. Limitation of Liabilities. YOU AGREE THAT NEITHER EARBITS NOR ANY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, GENERAL, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOST BUSINESS INFORMATION, BUSINESS INTERRUPTION, CORRUPTION OF FILES OR ANY OTHER PECUNIARY LOSS), WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF EARBITS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. EARBITS’ CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS ARTIST TERMS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO EARBITS FOR USE OF THE EARBITS ARTIST SERVICES.
12. Copyright or Intellectual Property Infringement Notification. Earbits respects the intellectual property rights of others. You can notify Earbits of possible copyright infringement, and Earbits will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
(a) A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on our Website reasonably sufficient to permit Earbits to locate the material;
(d) Your contact information, including your address, telephone number, and email;
(e) A statement by you 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; and
(f) A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
If you are the subject of a claim of copyright or intellectual property infringement (the “Subscriber”), you may file a counter-notice or statement claiming that your work is not an infringement. Such counter-notice must include the following:
(a) A physical or an electronic signature of the Subscriber;
(b) A description of the material or work that has been removed or to which access has been disabled and the location at which the material or work appeared before it was removed or access to it was disabled;
(c) A statement under penalty of perjury that the Subscriber has a good faith belief that the material or work was disabled or removed as a result of mistake or misidentification of the material or work to be removed or disabled; and
(d) Subscriber’s name, address and telephone number and a statement that the Subscriber consents to the jurisdiction of federal district court for the judicial district in which the address is located; or, if the Subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the Subscriber
will accept service of process from the person who provided notification or an agent of such person;
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act ("DMCA"). Claims can be sent to [email@example.com ] or to Earbits, Inc., 957 Lake Street, Venice, CA 90291.
13. Idea Submission. Earbits is always improving its Earbits Artist Services and developing new features. If you have ideas regarding improvements or additions to Earbits, we would like to hear them but any submission will be subject to the General Terms Agreement.
UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY IDEA OR RELATED MATERIALS TO EARBITS BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION. BY SUBMITTING THE IDEA AND/OR ANY RELATED MATERIAL TO EARBITS, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE IDEA OR ANY RELATED MATERIALS AND ARE REPRESENTING AND WARRANTING TO EARBITS THAT THE IDEA AND/OR RELATED MATERIALS ARE WHOLLY ORIGINAL WITH YOU, THAT NO ONE ELSE HAS ANY RIGHTS IN THE IDEA AND/OR MATERIALS AND THAT EARBITS IS FREE TO IMPLEMENT THE IDEA AND TO USE THE MATERIALS IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY EARBITS, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY.
14. Term and Termination.
14.1 Either you or Earbits may terminate this Artist Terms Agreement at any time and for any reason. In addition, this Artist Terms Agreement will terminate immediately, without notice, if you fail to comply with the terms of this Artist Terms Agreement. Upon any termination of this agreement, (i) Earbits will cease providing the Earbits Artist Services; (ii) any outstanding balance payable by you to Earbits will become immediately due and payable; (iii) you will not be entitled to any refunds of any usage fees or any other fees; and (iv) all of your historical report data will no longer be available to you.
14.2 The provisions of Sections 1.3 (Artist Representations), 1.4 (Artist Agreement) 1.6 (Submitted Content), 2.2 (Proprietary Rights), 3.1 (Purchase of Airtime), 3.2 (Payment Terms), 5 (Information Rights), 8 (Indemnification), 9 (Waiver and Release), 10 (Disclaimers), 11 (Limitation of Liabilities), 14 (Term and Termination), 15 (Export Controls) and 16 (Miscellaneous) shall survive any termination of this Artist Terms Agreement.
15. Export Controls. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Artist Terms Agreement. Any Earbits Technology and related software is controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals. By downloading or using Earbits Technology and related software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
EARBITS MAY MODIFY THIS ARTIST TERMS AGREEMENT AT ANY TIME, IN EARBITS’ SOLE DISCRETION. THESE CHANGES BECOME EFFECTIVE IMMEDIATELY UPON POSTING AND YOUR CONTINUED USE OR ACCESS OF THE EARBITS ARTIST SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED ARTIST TERMS AGREEMENT. PLEASE REVIEW THESE ARTIST TERMS OF SERVICE FROM TIME TO TIME SO THAT YOU WILL BE APPRISED OF ANY CHANGES.