Terms of Service
Last Updated: November 4th, 2020
Please read these Terms of Service (“Terms”, “Terms and Conditions”) carefully before using the http://www.earshot-distro.ca and edds.NCRA.ca (“!eDDS”, “Website”) website operated by the National Campus and Community Radio Association (“NCRA/ANREC”, “we”, “our”, or “us”).
These Terms and Conditions govern the use of the !eDDS,
Your access to and use of the !eDDS is conditioned on your acceptance of and compliance with these Terms/ These Terms apply to all visitors, users and others who access or use the !eDDS.
By accessing or using the !eDDS you agree to be bound by these Terms. If you disagree with any part of the terms you may not access the !eDDS.
1. Description of the Platform
The Platform is a Digital Distribution System. Registered users of the Platform may submit, upload, and post audio, text, photos, pictures, graphics, and other content, data, or information (“Content”), which will be stored by the NCRA/ANREC at the direction of such registered users, and may be shared and distributed by such registered users, using tools and features provided as part of the Platform and accessible via the !eDDS. The Platform also enables registered users to interact with one another and enables specific users of the !eDDS to view, listen to, share, and download Content uploaded and made available by other registered users. This takes place in Canada, but may extend outside of the country in the future.
2. Use of the Site and Services
- Eligibility. The NCRA/ANREC will only knowingly provide the !eDDS and Services to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the !eDDS and/or Services only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. The !eDDS and Services are not intended for children under the age of 13.
Compliance with the Terms and Applicable Law. You must comply with all of the Terms and conditions of the Terms, the applicable agreements, and policies referred to below, and all applicable laws, regulations, and rules when you use the !eDDS and Services.
- License to Use Site and Services. The NCRA/ANREC grants you a limited, revocable license to access and use the !eDDS and Services for its intended purposes, subject to your compliance with these Terms. This license does not include the right to collect or use information contained on the !eDDS for purposes prohibited by the NCRA/ANREC, to create derivative works based on the !eDDS and its contents or any third party content available via the !eDDS, or to download or copy the !eDDS (other than page caching). If you use the !eDDS in a manner that exceeds the scope of this license or breaches these Terms, the NCRA/ANREC may revoke the license granted to you. The NCRA/ANREC and its licensors solely and exclusively own all intellectual property and other right, title, and interest in and to the !eDDS and Services, except as expressly provided for in these Terms. You will not acquire any right, title, or interest there except as otherwise expressly set forth in these Terms. This Section 2(b) does not pertain to your intellectual property rights. Any rights relating to material that you upload to the !eDDS are covered by the Artist Agreement. The NCRA/ANREC may modify the !eDDS and/or Services at any time with or without prior notice to you and will incur no liability for doing so.
- Prohibited Uses. Except as may be expressly permitted by the NCRA/ANREC, you may not: (i) interfere with the !eDDS and/or Services by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (ii) modify, create derivative works from, reverse engineer, decompile, or disassemble any technology used to provide the !eDDS and/or Services; (iii) use a robot, spider, or other device or process to monitor the activity on or copy pages from the !eDDS, except in the operation or use of an internet “search engine”, hit counters, or similar technology; (iv) collect email addresses or other information from third parties by using the !eDDS and/or Services; (v) impersonate another person or entity; (vi) use any meta tags, search terms, key terms, or the like that contain the NCRA/ANREC’s name or trademarks; (vii) engage in any activity that interferes with another user’s ability to use or enjoy the !eDDS and/or Services; or (viii) assist or encourage any third party in engaging in any activity prohibited by these Terms.
3. Proprietary Rights
The !eDDS and the content, marks, logos, and other materials on the !eDDS (“Site Content”) are protected by copyright, trademark, and other laws of Canada and foreign countries, You acknowledge and agree that the !eDDS and Site Content, including all associated intellectual property rights, are exclusive property of the NCRA/ANREC and its licensors. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the !eDDS or Site Content.
All trademarks, service marks, logos, trade names, and any proprietary designations of the NCRA/ANREC used herein are trademarks or registered trademarks of the NCRA/ANREC. Any other trademarks, service marks, logos, trade names, and other proprietary designations are the trademarks or registered trademarks of their respective parties.
4. Representations and Warranties
You warrant and represent that: (i) you have full power and authority to enter into and perform under these Terms, which is a valid, legal, and binding agreement between the parties; (ii) your use of the !eDDS and/or Services will not infringe the copyright, trademark, patent, trade secret, right to privacy, right to publicity, contractual, or other legal right of any third party and will comply with all applicable laws, rules, and regulations; (iii) there are no claims, demands, or any form of litigation pending or, to the best of your knowledge, threatened with respect to any of your content or materials furnished to the NCRA/ANREC by you in connection with the !eDDS and/or the Services; (iv) The NCRA/ANREC will not be required to make any payments to any third party in connection with your use of the !eDDS and/or Services; and (v) the content and materials furnished by you to the NCRA/ANREC via the !eDDs and/or in connection with the Services do not and will not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
You agree to indemnify and hold the NCRA/ANREC and its employees, representatives, agents, affiliates, directors, officers, managers, and shareholders (the “Parties) harmless from any damage, loss, or expense (including, without limitation, lawyers’ fees and costs) incurred in connection with any third party claim, demand, or action brought against any of the parties in connection with your breach or alleged breach of these Terms. If you have an indemnity to the NCRA/ANREC under this section, the NCRA/ANREC will have the right to control the defense, settlement, and resolution of any claim at your sole expense. You may not settle or otherwise resolve any claim without the NCRA/ANREC’s express written permission.
6. Disclaimer and Limitations
- Disclaimer of Warranties. THE NCRA/ANREC PROVIDES THE !eDDS AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE NCRA/ANREC DOES NOT REPRESENT OR WARRANT THAT THE !eDDS, SERVICES, OR ITS USE; (I) WILL BE UNINTERRUPTED, (II) WILL BE FREE OF INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE THAT YOU USE. THE NCRA/ANREC MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TERMS AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
- Exclusion of Damage. THE NCRA/ANREC WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE NCRA/ANREC SERVICE, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF POSSIBILITY OF SUCH DAMAGES.
- Limitation of Liability. IN NO EVENT WILL THE LIABILITY OF THE NCRA/ANREC EXCEED THE GREATER OF (I) THE AMOUNT PAID OR PAYABLE BY THE NCRA/ANREC TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY FOR (II) $100.
The NCRA/ANREC may suspend or terminate your use of the !eDDS and/or Services if it believes, in its sole and absolute discretion, that you have breached this Agreement. Sections 4, 5, 6, 8, and 9 of these Terms shall survive termination.
All notices required or permitted to be given under these Terms will be in writing and delivered to the other party by any of the following methods: (i) Canadian mail, (ii) overnight courier, or (iii) electronic mail, If you give notice to the NCRA/ANREC, you must use the following addresses: The National Campus and Community Radio Association, 331 Cooper Street, Suite 601, Ottawa, ON, K2P 0G5 or info@NCRA.ca. If the NCRA/ANREC provides notice to you, the NCRA/ANREC will use the contact information provided by you to the NCRA/ANREC. All notices will be deemed received as follows: (i) if by delivery by Canadian mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. If applicable law requires that a given communication be “in writing” you agree that email communication will satisfy this requirement.
9. Dispute Resolution
You and the NCRA/ANREC agree that any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, or to the use of the !eDDS and/or Services (collectively, “Disputes”) will be settled by binding arbitration administered by the Canadian Arbitration Association (“CAA”) in accordance with its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “Rules”), as modified by these Terms, except that the NCRA/ANREC retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual threatened infringement, misappropriation, or violation of its copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and the NCRA/ANREC are each waiving the right to a trial by jury or to participate as plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and the NCRA/ANREC otherwise preside over any form of any class representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void.
The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and the NCRA/ANREC agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce costs and burdens on the parties: (i)the arbitration shall be conducted by telephone, online, and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearances by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
These Terms will be binding upon each party hereto and its successors and permitted assigns and governed by and construed in accordance with the laws of the Province of Ontario without reference to conflict of law principles. Only if the Disputes Resolution clause is deemed to be null and void, then all disputes arising between you and the NCRA/ANREC under these Terms shall be subject to the exclusive jurisdiction of the provincial and federal courts located in Ottawa, Ontario and you and the NCRA/ANREC hereby submit to the personal jurisdiction and venue of these courts. These Terms will not be assignable or transferable by you without the prior written consent of the NCRA/ANREC. The NCRA/ANREC may freely assign or transfer any rights granted by you to it under these Terms. These Terms (including all of the policies and other agreements described in these Terms, which are hereby incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power, or privilege under this Agreement will operate as a waiver thereof. No agency, partnership, joint venture, or employee-employer relationship is intended or created by these Terms. The invalidity or unenforceability or any provision of these Terms will not affect the validity r enforceability of any other provision of these Terms, all of which will remain in full force and effect. The headings used in these Terms are for convenience only and shall not be deemed to limit or affect any of the provision hereof.
11. Modification of this Agreement
The NCRA/ANREC reserves the right to revise the Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the !eDDS. Any revisions to the Terms are effective upon posting. It is your responsibility to visit this page periodically to ensure your continued acceptance of the Terms. Your continued use of the !eDDS and/or Services after a revised version of the Terms has been posted to the Site constitutes your binding acceptance of such revision and the revised Terms.
12. Copyright Infringement Claims
The NCRA/ANREC respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously and asks that its users do the same. Infringing activity will not be tolerated on or through the !eDDS or Services. The NCRA/ANREC will promptly remove or disable materials from the !eDDS that the NCRA/ANREC believes in good faith, following its receipt of notice in accordance with the requirements below, that the materials infringe a third party’s rights. Whether or not the NCRA/ANREC disables access to or remove materials, the NCRA/ANREC may attempt to forward the written notification, including the complainant’s contact information, to the user who posted the content and/or take other reasonable steps to notify the user that the NCRA/ANREC has received notice of an alleged violation of intellectual property rights or other violation. The NCRA/ANREC may also, in its discretion, terminate the accounts of repeat copyright infringers or of those who post inaccurate or unlawful content.
Any notice or counter-notice you submit must be truthful and submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may want to seek the advice of legal counsel before submitted a notice or counter-notice.
- Procedure for Reporting Claimed Infringement
If you believe in good faith that your copyright or other intellectual property rights have been infringed, please provide us with written notice containing;
- Your name, telephone number, address, and e-mail address;
- A description of the copyright work that you claim has been infringed;
- A description of the material on the !eDDS that you believe is infringing the copyrighted work and where such material may be found on the Site;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or by the law;
- A statement by you, made under the penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and
- Your electronic or physical signature
Please submit your notice to the NCRA/ANREC as follows:
By Canadian mail:
The National Campus and Community Radio Association
Attn: Copyright Infringement Claims
331 Cooper Street, Suite 601.
You should consult with your own lawyer to confirm your obligations to provide a valid notice of claimed infringement.
- Counter-Notice to Restore Removed Content
If you believe that a notice of copyright or other infringement has been improperly submitted against you, you may submit a Counter-Notice, by providing the NCRA/ANREC with a written notice which contains:
- You name, telephone number, address, and e-mail address;
- Identification of the material removed from the !eDDS or to which access has been disabled
- A statement under penalty of prejury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified;
- A statement that you consent to the jurisdiction of the
- Your physical or electronic signature
- False Notifications of Claimed Infringement or Counter Notifications
The NCRA/ANREC reserves the right to seek damages from any party that submits a notification of claimed infringement or counter-notification in violation of the law